NOSA AKINTOLA OKUNGBOWA & ORS v. GOVERNOR OF EDO STATE & ORS (2014)

NOSA AKINTOLA OKUNGBOWA & ORS v. GOVERNOR OF EDO STATE & ORS

(2014)LCN/6764(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of January, 2014

CA/B/324/07

RATIO

WHETHER PARTIES CAN RE-LITIGATE A DISPUTE THAT JAS BEEN JUDICIALLY PRONOUNCED UPON

There is no doubt that once a dispute or an issue in a dispute has been finally and judicially pronounced upon, by the court of competent jurisdiction, neither the parties thereto nor their privies can re-litigate such matter in court. The decision is valid until reversed by a superior court. See Yusuf v. Adegoke (2007) 4 SCNJ 77; Alhaji Madi Mohammed Abubakar v.Bebeji Oil & Allied Products & Ors 9 (2007) 2 SCNJ 170. Malgit v. Dalchem (1998) 5 NWLR Pt. 550 pg. 384 at 394, Oloye v. Olayemi (2013) 9 WRN 92 at 99, Dauda v. Attorney-General of Lagos State (2012) 13 NWLR pt. 1265 pg. 427 SC. Per HELEN MORONKEJI OGUNWUMIJU J.C.A.

CONSTITUTIONAL LAW: THE CONSTITUTION AS THE SUPREME LAW

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. NOSA AKINTOLA OKUNGBOWA
Substituted for Late Hon. Justice G.O.U Okungbowa (Rtd)
2. SAMUEL OSHIORIAME ERUAGA
Substituted for Late Hon. Justice J.M Eruaga (Rtd)
3. MR E.K.O OMORERE, JP
4. SIR P.A IGBINOVA
5. HON. J. AIFUOBHOKHAN
6. HON. J. IBHASUOTE
7. HON. A.R. OLUMELE Appellant(s)

AND

1. GOVERNOR OF EDO STATE
2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE
3. HON. JUSTICE ANTHONY ALIU OKUNEGA
4. MR SALIU JEREMIAH
5. HON. FRIDAY OJO
6. CHIEF MRS CAROLINE EWOHIMEN
7. MR OBHAFUOSO ROBERT
8. REV. MRS PAT URIA OMOGUN
9. MR ERIC UHUNWANGHO Respondent(s)

HELEN MORONKEJI OGUNWUMIJU J.C.A. (Delivering the Leading Judgment): This is an appeal resulting from the judgment of Hon. Justice P. Imoedemhe of the High Court of Justice Edo State delivered on 14/11/07. The facts which led to this appeal are as follows:
On 12th July, 2005 the appellants were appointed Chairman and members respectively of the Edo State Independent Electoral Commission for a tenure of five years expiring on 12th July, 2010. Section 199(1) of the Constitution of the Federal Republic of Nigeria guarantees appellants’ tenure of five years.
Following a resolution of Edo State House of Assembly passed on 4th April, 2007 requesting that the 1st respondent, Governor of Edo State, to remove the appellants from office, and the subsequent removal of the appellants from office, the appellants filed Suit No: B/115/OS/2007 against the 1st respondent and two others at the High Court of Edo State, Benin Judicial Division challenging inter alia, the constitutionality of the said resolution which was predicated on four ground namely:
a. Failure of the appellants to prepare and submit to the House of Assembly audited accounts of Edo State Independent Electoral Commission.
b. Release of time table for Local Government Election in Edo state which allegedly conflicted with general elections in the country.
c. Sale of nomination forms to aspirants to Local Government Councils without recourse to their political parties.
d. Failure to abide by a resolution of Edo State House of Assembly passed on 19th March, 2007 requesting the appellants to put on hold the conduct of Local Government election in the state.
After hearing the argument of counsel in the above suit, Ikponmwen J. on 30th May, 2007 delivered a well-considered judgment in which the claims of the appellants were upheld. Consequently, the resolutions of the Edo State House of Assembly passed on 19th March, 2007 and 4th April, 2007 respectively were declared unconstitutional, null and void and of no effect whatsoever.
Dissatisfied with the above judgment in Suit No: B/115/OS/007,the 3rd defendant therein (Edo State House of Assembly) on 4th June, 2007 filed an appeal against the said judgment to this Court.
The House of Assembly also filed an application for stay of execution of the aforesaid judgment. That application was heard and dismissed by the lower court on 26th June, 2007.
On 19th June 2007 (during the pendency of its motion for stay of execution), the Edo State House of Assembly (now differently constituted) again passed a resolution requesting that the 1st respondent herein, the Governor of Edo State, to remove the appellants from their respective offices in Edo State Independent Electoral Commission on the ground of the alleged misconduct.
Upon receipt of the aforesaid resolution of the Edo State House of Assembly passed on 19th June, 2007, the 1st respondent on the same date removed the Appellants from their respective positions in Edo State Independent Electoral Commission.
Aggrieved, the appellants instituted an action via originating summons dated 4/07/07 before the Benin High court praying the Court to determine the following questions:
(a) Whether in the light of the clear and unambiguous provisions of Sections 199(1), 201 (1), 205(d) and 287(3) of the constitution of the Federal Republic of Nigeria 1999, and the judgment of the High Court of Edo State in Suit No B/115/OS/07 delivered on the 30th May 2007 the defendant can validly remove the plaintiffs from their respective positions as chairman and Members of Edo State Independent Electoral Commission.
(b) Whether or not the Plaintiffs can be condemned unheard in violation of section 36(1) of the constitution of the Federal Republic of Nigeria 1999.
(c) Whether or not the appointment of the 3rd-9th Defendants as Chairman and members of the Edo State Independent Electoral Commission is valid and consistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
The Plaintiffs now appellants claimed against the defendants now respondents jointly, the following reliefs:
a) A declaration that the purported dissolution of the Edo State Independent Electoral Commission and removal of the plaintiffs from their respective positions as Chairman and members of the Edo State Independent Electoral Commission is unconstitutional, null and void and of no effect whatsoever.
b) An order setting aside the purported dissolution of the Edo State Independent Electoral Commission.
c) An order reinstating the plaintiffs back to their respective positions of chairman and members of the Edo State Independent Electoral Commission.
d) An order directing the payment of the Plaintiffs’ salaries and allowances from 1st June 2007 until the date of their reinstatement.
e) An order of injunction restraining the Defendants from dissolving the Edo State Independent Electoral Commission or terminating the appointments of the plaintiffs until the expiration of their five year tenure guaranteed under the Constitution of the Federal Republic of Nigeria 1999.
f) A declaration that the appointment of the 3rd-9th Defendants as Chairman and members respectively of Edo State Independent Electoral Commission is unconstitutional, null and void and of no effect whatsoever.
g) An order of injunction restraining the 3rd-9th defendants from parading themselves or allowing themselves to be paraded as chairman and members of the Edo State Independent Electoral Commission during the tenure of the plaintiffs ending on 12th July 2010.
The Respondents, in response to the Appellants’ originating summons filed two counter affidavits dated 6/08/2007 and 4/9/2007 respectively. They thereafter filed a 2nd further affidavit while the Respondents deposed to a further counter affidavit to which they attached exhibits A1-A4. The trial court Coram Imoedemnhe J. on 14/11/2007 gave judgment against the Appellants and held that they were not entitled to any of the reliefs as claimed and the originating summons was dismissed.
Dissatisfied with the judgment, the Appellants filed a notice of appeal on 19/11/2007. The Appellants later filed an amended notice of appeal deemed filed on 25/4/2012. They relied on the later notice of appeal.
Appellants filed their amended brief of argument on 2/5/12. The 1st and 2nd respondents filed their brief of argument on 18/4/13 and it was deemed filed on 15/05/13. The 3rd-9th Respondents filed their brief on 25/11/08 and it was deemed filed on 17/05/10. The Appellants then filed a reply brief on 3/06/13.
The parties raised the following issues for determination. The Appellants’ issues are as follows:
1. Whether or not the learned trial Judge was right when he held that the High Court of Edo State did not in its judgment delivered in suit No. B/115/OS/07 on 30th May, 2007 pronounce on the constitutionality of the charge of misconduct against the appellants based on the alleged direct sale of forms to political aspirants to the Local Government Councils in Edo State as contained in the resolution of the Edo State House of Assembly passed on 4th April, 2007.
2. Whether or not the mere sale of nomination forms to aspirants to Local government Councils without recourse to their Political Parties amounts to a breach of Sections 7(4) and 106(d) of the constitution of the Federal Republic of Nigeria, 1999.
3. Whether or not the learned trial judge was right when he held that the appellants were accorded fair hearing and removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria 1999.
4. Whether the lower Court was right to have upheld the appointment of the 3rd-9th respondents as Chairman and members of the Edo State Independent Electoral Commission.
The 1st and 2nd respondents on the other hand, formulated the following issues for determination;
1. Whether or not the plea of estoppel raised by the Appellants based on exhibit ‘C’ and the resolution of the Edo State House of Assembly passed on 4/4/07 was properly dismissed by the learned Trial Judge.
2. Whether or not the removal of the appellants as members of the Edo State Independent Electoral Commission based on a resolution of the Edo State House of Assembly passed on 19/06/07 is lawful and valid.
3. Whether or not the subsequent appointment of the 3rd-9th defendants is proper and valid under the law
4. Whether or not a breach of Sections 7(4) and 106(d) of the Constitution of the Federal republic of Nigeria 1999(which was admitted) by the appellants amounts to misconduct under Section 205(d) of the Constitution of the federal Republic of Nigeria.
The 3rd-9th respondents formulated the issues below for determination;
1. Was the learned trial Judge right in holding that the judgment in Suit No: B/115/2007 Exhibit C in the proceedings did not pronounce on the constitutionality of the charge of misconduct against appellants with respect to the allegation of direct sale of forms to aspirants without recourse to the political parties the consequence of which is that the said judgment cannot be raised as either issue estoppels or res judicata against any of the respondents.
2. What is the legal implication or consequence of the sale of nomination forms to aspirants who were not sponsored by political parties having regard to S.7(4) and 106(d) of the constitution of the Federal Republic of Nigeria 1999
3. Were the appellants given a fair hearing from the totality of the case before they were removed from office in accordance with the provisions of the constitution
4. Was the appointment of 3rd-9th respondents valid and consistent with the provisions of the 1999 constitution
5. Having regard to the entire circumstances of the case and supervening events, should the appellants be reinstated as prayed for in relief C of their claim or be paid their salaries and allowances as prayed for in relief D.
I am satisfied that the issues as formulated by appellants’ counsel address all the complaints articulated in the notice of appeal. Since they are similar to all those couched by the respondents, I will adopt them for the determination of this appeal.
ISSUE ONE
The issue is whether the Court in its judgment in Suit No: B/115/OS/07 on 30th May, 2007 pronounced on the constitutionality of the charge of misconduct against the appellants as contained in the resolution of the Edo State House of Assembly passed on 4th April, 2007.
Appellant’s counsel submitted that appellants had earlier been removed from office on 4th April 2007 by a resolution of the State House of Assembly dated 4/4/07 which grounds for removal were four including the allegation of sale of nomination forms pursuant to which appellants instituted Suit B/115/OS/07. Counsel argued that the resolution was nullified by the Court and judgment given in favour of the appellant and that on 19th June 2007; Appellants were again removed from office by a resolution based on ground of sale of forms to political aspirants. Counsel argued that though the Appellants brought this to the attention of the lower court, the learned trial Judge held that it had no powers to look at the materials before the previous Court. Counsel submitted that the trial court did not properly direct itself on its judicial duty to scrutinize the record in the previous case and to identify the subject matter of dispute to enable it apply the doctrine of estoppel per rem judicatam. He cited Oshodi & Ors v. Eyifunmi(2000) 12 NWLR Pt. 684 pg. 298 at 326, Adomba v. Odiese (1990) 1 NWLR pt. 125 pg. 165 at 184, Larbi v. Kwaberia 14 WACA 299, Mba v. Agu (1999) 12 NWLR pt. 629 pg. 1 at 14. Counsel submitted further that, it is a rule of public policy that no one shall be vexed twice on the same ground for one and the same issue.
Learned counsel argued that the plea of res judicata in relation to the decision of the Court in Suit No: B/115/OS/07 relating to the selling of nomination forms to the political aspirants should have been upheld by the trial court. Counsel then argued that the failure of the trial Court to look at the material records of the previous proceedings to determine the applicability of res judicata was erroneous. Bunyan v. Akingboye (1999) 7 NWLR Pt. 609 pg. 31 at 41, Agabi v. Obi (1998) 2 NWLR Pt. 536 pg. 1, Opawole v. Tinubu (2004) 11 NWLR pt. 884 pg. 290, Idagierie v. Oare (2005) 17 NWLR pt. 953 pg. 34.
The 1st and 2nd respondents’ counsel on this issue argued that the resolution dated 4/4/2007 upon which judgment in Suit No B/115/OS/07 was given does not estop the respondents forever from carrying out their constitutional duties and as such the resolution passed on 19/06/07 was in line of duty and valid. He further stated that the parties, issues and subject matters in Suit No B/115/OS/07 and Suit No B/216/OS/07 are not the same and as such estoppel cannot apply. Counsel cited Oyewunmi v. Ogunesan (1990) 3 NWLR Pt. 137 pg. 182, Iheanacho Nwaneri & Ors v. Nnadikwe Oriuwa(1959) 4 FSC 132, Fawehinmi v. NBA & Ors (No 2) 1989 NWLR pt. 105 pg. 558 at 650, Clement & Anor v. Iwunanyanwu & Ors (1989) 3 NWLR pt. 107 pg. 39 at 53 and 54.
Learned Counsel for 3rd-9th Respondents on this issue submitted that the mere fact that the Court in Exhibit “C” granted the reliefs based on the two or three grounds of misconduct alleged in the resolution cannot be a basis to hold that the Court gave a decision on the constitutionality of the fourth ground now being canvassed in this case. Counsel in arguing further stated that the trial Judge was right in holding that his learned brother did not make any pronouncement on the constitutionality of the Appellants selling forms to aspirants without recourse to political parties. Counsel argued that there is nowhere in the judgment where it was stated in clear terms that the act complained of was constitutional or not and that nothing should be read into a judgment when it is not there. Learned Counsel argued that the learned Appellants’ counsel cannot read into Exhibit C what it did not contain. Counsel relied on the following cases; Kosebinu v. Deimi (2006) All FWLR pt. 295 pg. 700, Ammani v. Tambuiwu (2006) All FWLR pt. 322 pg. 1556, United Power Services v. Ufot (2006) All FWLR pt. 304 pg. 489, Adeniyi v. Oroja (2006) All FWLR pt. 324 pg. 1839, Egwunewu v. Ejiagwu (2006) All FWLR pt. 324 pg. 1883, Dungir v. Kwagukor (2006) All FWLR pt. 306 pg. 459, Mafimisebi v. Ehunwa (2007) 2 NWLR pt. 1018 pg. 385.
Counsel arguing on res judicata argued that for any party to raise successfully the plea of estoppel per rem judicatam, the party must establish the following;
a. That the parties and privies in the previous case and the present case are the same
b. The claim or issues in dispute in both proceedings are the same
c. The res or subject matter of litigation in the two cases are the same
d. The decision relied upon to support the plea is valid and subsisting
e. That the court that gave the previous decision relied upon to sustain the plea is correct and of competent jurisdiction.
Counsel then cited Afolabi v. Governor of Osun State (2003) 13 NWLR pt. 836, Mlami v. Pmim (1977) 5 SC 13, Olamg v. Edoho (1981) 6-7 SC 221, Udo v. Obot (1989) 1 NWLR pt. 95 pg. 59, Achiakpa v. Nduka (2001) 14 NWLR pt. 732 pg. 645 A-D. Counsel stated further that the Appellants must meet all the conditions above, failure of which will result in the failure of the application. Counsel cited Oke v. Atoloye (No 2) (1986) 1 NWLR pt. 15 pg. 241, Yoye v. Olubode (1974) 1 All NLR pt. 2 pg. 118, Fadiora v. Obadebo (1978) 3 SC 219.
The learned trial Judge held at page 198-199 of the record of appeal as follows on this issue:
“The point being made here is that it is the judgment that has to be looked at, for if the cause of action was found to exist and judgment given to it only the judgment can be evidence of same. The above position is expressly captured in the main provisions of Section 54 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990 which is as follows:
’54: Every judgment is conclusive proof, as regards parties and privies of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it is based’
See also The Honda Place Ltd v. Globa Motors Ltd (2005) 14 NWLR pt 945, 273 at 305 and 306. It follows from the foregoing that this court, not being an appellate court, lacks the powers to review Exhibit C by going beyond the judgment itself to further consider what materials were before the court (such as Exhibit A in this case) and to find from those materials what was the decision of the court.”
I find the reasoning of the learned trial Judge very peculiar. It is just like saying that where the issue of whether a piece of land had been adjudicated upon is raised as res judicata, the learned trial Judge need only look at the conclusion in the previous Judgment and cannot ascertain from the evidence of the parties during the proceedings whether it was the same description and dimension of land hitherto adjudicated upon. The previous decision in B/115/OS/07 was initiated by originating summons. The various affidavits with the attachments thereto constituted evidence and the proceedings in respect of same.
In Oshodi & Ors v. Eyifunmi (2010) 13 NWLR pt. 684 pg. 298 at 326, the court held as follows:
“In determining whether the plea of estoppel per judicatam or whether the issues, the subject of the two actions and the parties are the same, the Court is permitted to study the pleadings, the proceedings and the judgment in the previous proceedings. The Court may also examine the reasons for the judgment and other relevant facts to discover what was in issue in the previous case. See Fadiora v Gbadebo (Supra). It is therefore a question of fact whether the parties and their privies, the facts in issue and the subject matter of the claim are the same in both the previous and the present cases”
There is no doubt that once a dispute or an issue in a dispute has been finally and judicially pronounced upon, by the court of competent jurisdiction, neither the parties thereto nor their privies can re-litigate such matter in court. The decision is valid until reversed by a superior court. See Yusuf v. Adegoke (2007) 4 SCNJ 77; Alhaji Madi Mohammed Abubakar v.Bebeji Oil & Allied Products & Ors 9 (2007) 2 SCNJ 170. Malgit v. Dalchem (1998) 5 NWLR Pt. 550 pg. 384 at 394, Oloye v. Olayemi (2013) 9 WRN 92 at 99, Dauda v. Attorney-General of Lagos State (2012) 13 NWLR pt. 1265 pg. 427 SC
I agree with the learned appellants’ counsel that the learned trial Judge erred not to have considered Exhibit A (the resolution of the Edo State House of Assembly) which was passed on 4/4/07 along with the judgment, Exhibit C. If he did, his Lordship would have seen that among the allegations in Exhibit A was the sale of forms to political aspirants. The test for estoppel per rem judicatam as outlined by the 3rd-9th respondents’ counsel can only bring results when the court looks into the facts and records of the previous case and then compares it with the facts of the present case. See the decisions of the Apex court in Agbogunleri v. Depo (2008) 3 NWLR pt 1074 at 217 SC, Nigergate Ltd v. Niger State Government (2008) 13 NWLR pt 1077 at 217 SC. The conclusion of Ikponmwen J. was that the conceded acts of the appellants did not constitute misconduct envisaged under Section 205(d) of the Constitution. Iguh JSC held in Oshodi v. Eyifunmi (supra), at pg 337 of the NWLR as follows:
“A careful study of the entire evidence on record does disclose that the subject matter of the previous proceedings is the same with the land in dispute in the present action…”
At page 22 of the record, part of the conclusion of Ikponmwen J. in Exhibit C is set out below:
“In answer to question (d), I find that paragraphs 7 and 8 of the affidavit in support of the originating summons which are uncontroverted and deemed admitted, the reasons for the address to the Governor for the removal of 2nd-8th Plaintiffs from office are not tenable and they run contrary to Section 201(1) of the Constitution which provides that they shall (underlining mine) only be removed from office for inability to discharge the functions of the office or for misconduct”
I cannot but emphasize that it is the duty of the Judge not to interpret a previous judgment and exhibits tendered therein with a view to defeating the spirit and letters of such a previous judgment wherein some issues had been settled to finality until it is reversed. See Mba v. Agu (1999) 2 NWLR pt 629 pg 1 at 14.
I must here re-state the difference between a plea of estoppel per rem judicatam and issue estoppel. In the former, the party pleading it must prove that the res, the claim and the parties are the same. See Ikotun v. Oba Samson Oyekanmi (2008) 4 SCNJ 377. In the latter, a party pleading issue estoppel need not prove that the res, the claim and the parties are the same. In the circumstances, the fact that the defendants in Suit No: B/115/OS/07 are different from the defendants in B/216/OS/07 is quite immaterial. See Abiola & Sons Company Ltd v. 7 Up Bottling Company Ltd (2012) 15 NWLR pt 1322 at 184 SC
I have to also say generally that even though the plea of estoppel per rem judicatam is not available to a plaintiff or claimant in a claim, the plea of issue estoppel can be brought by either party.
I am of the humble view that it is an attempt to split hair to posit as the Respondents’ counsel did that the judgment did not say in clear terms that sale of forms is unconstitutional given the clear and binding decision of Ikponmwen J. set out above as it appears on page 22 of the record.
It is unfair to say that Ikponmwen J. did not perform his judicial functions when he came to his conclusions. His judgment was lucid and clear enough to show that he considered all the issues in controversy.
I am also of the humble view that this issue be resolved in favour of the appellant.
ISSUES TWO AND THREE
Whether or not the mere sale of nomination forms to aspirants to Local government Councils, without recourse to their Political Parties, amounts to misconduct and a breach of Sections 7(4) and 106(d), of the Constitution of the Federal Republic of Nigeria, 1999 and whether the Appellants were given fair hearing before they were removed from office.
Learned counsel for Appellants’ position on the first leg of this issue, is that it is the duty of the Electoral Commission to undertake and supervise all elections to local government councils in Edo State. Counsel cited Sections 7, 106, 192(2), Paragraph 4(a) of Part 11 Third Schedule all of the 1999 Constitution, Paragraph 1(1) of the second schedule to Edo State Electoral law 2000, Section 2 Edo State Local Government Electoral Law 2002. Counsel further argued vociferously that nothing prohibits the sale of forms to aspirants. Counsel cited Ojukwu v. Obasanjo (2004) 12 NWLR Pt. 886 pg. 209. This is to buttress the point that the courts cannot import into the meaning of a word or clause of a statute what it does not say. Bronik Motors v. WEMA Bank (1983) 6 SC 158 was referred to. Counsel insisted that the Edo State Electoral Commission Law is silent on the issue of sale of form. In arguing that issuance of forms is not restricted only to political parties, learned counsel cited Section 10(3) of Edo State Local Government Law, 2000. Learned counsel further stated that the test of whether the alleged act is misconduct is objective and relied on the authority of Inakoju v. Adeleke (2007) 4 NWLR Pt. 1025 pg. 423 at 528-587 and 670. Counsel finally urged this Court to invoke its powers under Section 16 Court of Appeal Act, 2004 to resolve the issue in the Appellants’ favour.
The 1st and 2nd respondents counsel also on the first leg of this issue submitted that Section 201 of the Constitution empowers the respondents to remove the appellants from office. Counsel argued that the said acts of misconduct are listed in paragraph 6(d), (e) (f) and (g) of their counter-affidavit dated as in pages 56-77 of the record and as such, fall within the definition of misconduct envisaged by Section 201 of the Constitution. Learned Counsel further stated that Section 210 of the Constitution also empowers the respondents to remove the appellants from office for any other cause apart from the acts listed as amounting to misconduct.
Learned counsel to the 3rd-9th respondents on the other hand in arguing issues 2 and 3 together submitted that the sale of nomination forms by the Appellants amounts to misconduct under the Constitution. Counsel cited Sections 7(4), 106(d), 201 and 205 of 1999 Constitution. Counsel reproduced the alleged acts that amounted to misconduct marked Exhibit D2 as contained on page 88 of the records. Learned counsel argued further, relying on Section 106(d) of the Constitution that anyone who does not belong to a political party ought not to be allowed a nomination form stating that the handing over of nomination forms to individuals by the Appellants amounts to breach of the constitution. Counsel further relied on Exhibit D4 and described it as clear admission of misconduct of appellants. Learned Counsel strongly opposed the appellants’ counsel for contending that the trial Judge made findings on the constitutionality of the acts complained of and quoted the decision of the court on page 199 particularly the last two lines and the first few lines of page 200 of the record. Counsel cited Popoola v. Balogun (2207) All FWLR pt. 274 pg. 285 at 306. Ideozu v. Ochoma (2006) NWLR pt. 970 at 390, Ogboru v. Ibori (2006) 17 pt. 1009 pg. 542, Nwabueze v Nwosu (1988) 4 NWLR pt. 88 pg. 257, Kowa v. Musa (2006) 5 NWLR pt. 972 pg. 1
I shall first deal with the first leg of this issue. Let me remind us that on 19/06/07, the proceedings of the house as transmitted from page 60-62 of the record shows the address supported by two-thirds majority of the members of the Edo State House of Assembly which was addressed to His Excellency the Governor of Edo State. The relevant portion of the address is as set out below;
“Be it therefore resolved by this Assembly, in the exercise of its powers under S.201 of the Constitution of the Federal Republic 1999 hereby pray for the removal of the Chairman and members of Edo State Independent Electoral Commission that is:
1. HON JUSTICE GABRIEL OKUNGBOWA (RTD) – CHAIRMAN
2. HON. JUSTICE J.M. ERUAGA (RTD)               – MEMBER
3. HON. E. K. O. OMORERE                                 –  MEMBER
4. SIR (HON) P.A. IGBINOVIA                          – MEMBER
5. HON. JONATHAN AIFUOBHOKHAN                MEMBER
6. HON. JUDE IBHASUOTE                              –  MEMBER
7. HON. AKANDA ROBERTS OLUMOLE               MEMBER
For misconduct.
PARTICULARS OF MISCONDUCT
(a) The Chairman and members of the Edo State Independent Electoral Commission sold forms for the local Government Elections 2007 to individual candidates not sponsored by political parties as envisaged under the provisions of S.7(4) and s. 106(d) of the Constitution of the Federal Republic of Nigeria 1999.
That against the backdrop of the above misconduct by the Chairman and members of the Edo State Independent Electoral Commission, the Edo State House of Assembly by two-third majority (as attached) hereby prays for the immediate removal of
1. HON JUSTICE GABRIEL OKUNGBOWA (RTD) – CHAIRMAN
2. HON. JUSTICE J.M. ERUAGA (RTD)                 -MEMBER
3. HON. E. K. O. OMORERE                                -MEMBER
4. SIR (HON) P.A. IGBINOVIA                            -MEMBER
5. HON. JONATHAN AIFUOBHOKHAN                -MEMBER
6. HON. JUDE IBHASUOTE                                 -MEMBER
7. HON. AKANDA ROBERTS OLUMOLE               -MEMBER
As Chairman and members of the Edo State Independent Electoral Commission.
DATED THIS 19TH DAY OF JUNE 2007”
The proceeding of the House of Assembly on 19/6/07 was attached as Exhibit D2 starting from page 63 of the record. There is no doubt that the only act of misconduct levied against the appellants by the House of Assembly was the selling of forms for the local government elections to individual candidates not sponsored by political parties as envisaged by Section 7 and 106(d) of the constitution.
On the face of Exhibit G dated 19/6/07 which is the letter by which the 1st respondent removed the appellants from office, it is clear that the appellants were removed from office on the ground of misconduct pursuant to Section 201(1) and (2) of the Constitution. The learned trial Judge held as follows:
“On the face of the particulars of misconduct set out above, it is clear that a breach of the provisions of Sections 7(4) and 106(d) of the Constitution which amounts to misconduct under Section 205(d) is relied upon. By the joint effect of those provisions is that only candidates sponsored by a political party may contest Local Government Election and the Plaintiffs sold forms for the election to candidates not so sponsored. This is certainly not a “nebulous charge of misconduct known to the constitution”
The strong contention of the Appellant I must reiterate is that the mere sale of nomination forms to aspirants without recourse to their political parties does not constitute “misconduct” on the part of the Appellants. Now, Section 7 (4) of the Constitution provides as follows:
The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to the House of Assembly shall have the right to vote and be voted for at an election to a local government council.
Section 106(d) of the said Constitution also provides as follows:
Subject to the provisions of Section 107 of this constitution, a person shall be qualified for election as a member of a House of Assembly if- he is a member of a political party and is sponsored by that party.
I have to agree with the learned Appellants’ Counsel that there is nothing in the statutory and Constitutional provisions under which the appellants were removed from office which prohibits them from selling forms directly to political aspirants. The determination by the House of Assembly of whether an act amounts to misconduct should be objective and not be subjective because the legislature is bound by the provisions of the Constitution. In Inakoju v. Adeleke (2007) 4 NWLR pt. 1025 pg. 423 at 586-587, the Supreme Court at page 670 held as follows:
“As mentioned above, whether ‘gross misconduct’ is sufficient to warrant the removal of the Governor is apparently a political question and what is tantamount to it is within the discretion of the legislature. In their legislative functions, including deciding whether a conduct amounts to an impeachable offence, the legislature is bound by the other provisions of the Constitution. In my view, the legislature must act in a responsible and civilized manner, whenever it considers whether a conduct amounts to ‘gross misconduct’. The offending conduct must be in my view at least breach of code of conduct contained in the Constitution. It is not every conduct that the legislature deems impeachable that is impeachable, the Courts have the jurisdiction to examine whether a conduct amounts to gross misconduct or there is indeed a breach of the Constitution.”
Let us look at the other provisions of the Constitution.
Section 199(1)(C)of the Constitution provides as follows:
A person who is a member of any of the bodies established aforesaid shall, subject to the provisions of the part remain a member thereof.
(a)………………………
(b)………………………
(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.
Section 201 of the same Constitution provides as follows:
Any person holding any of the offices to which this section applies shall only be removed from the office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
In Governor of Kwara State v. Ojibara & Ors (2006) 18 NWLR pt. 1012 pg. 645, the Supreme Court held as follows:
“The tenure of the Governor of a state under the 1999 Constitution as well as that of the State legislature is four years. The Constitution however grants the members of a State Independent Electoral Commission, a tenure of five years. It ought not to escape attention that the deliberate purpose of the Constitution is to create an Electoral Commission, the lifespan of which exceeds those of both Governor and State legislature. This is done with a view to create continuity and stability in the electoral process and governance. The same is done in relation to the State Civil Service Commission and the State Judicial Service Commission. It is not the intendment of the Constitution that the membership of those commissions should change with the fortunes of the political parties in a State.”
These are insightful and powerful words coming from the Supreme Court. Let us look at Pt II of the 3rd Schedule to the Constitution which provides as follows:
3. A State Independent Electoral Commission shall comprise the following members-
(a) a Chairman; and
(b) not less than five but not more than seven other persons
4. the Commission shall have the power-
(a) to organize, undertake and supervise all elections to local government councils within the State.
(b) to render such advice as it may consider necessary to the Independent National Electoral Commission on the compilation of and the register of voters in so far as that register is applicable to local government elections in the State.
To cap it up, Section 205(d) clearly expresses what amounts to misconduct as (underlining mine):
“misconduct means breach of the Oath of Allegiance or oath of office of a member or a breach of the Constitution or bribery and corruption or false declaration of assets and liabilities or conviction for treason or treasonable felony.”
From the provisions of the Constitution stated above, it goes without saying that the sale of nomination forms falls within the constitutional powers vested in the Appellants and there is no statute specifically prohibiting the Appellants from doing so. To argue contrary to this lucid fact would be a sheer waste of time. Also, what amounts to misconduct has been clearly stated by Section 205(d) of the Constitution. Clearly, sale of forms does not fall under the definition of misconduct under the section. The provisions of the Constitution are clear and where the contents of the Constitution are clear and unambiguous, no other secondary meaning should be ascribed to it. The Supreme Court in Ogaga v. Umukoro (2011) 18 NWLR pt. 1279 pg. 924 SC held as follows:
“The courts are vested with the power to interpret the Constitution and statutes. They are in fact custodians of the Constitution. In the interpretation of the constitution or statutes, the courts are enjoined to act in accordance with the intendment of the lawmakers, and to lean against any interpretation that will provide absurdity…. Once the words of a statute are clear and unambiguous, they ought to be accorded their simple grammatical meaning.”
See also Adewunmi v. Attorney-General of Ekiti State (2002) 2 NWLR pt. 751 pg. 474, Fawehinmi v. IGP (2000) 7 NWLR pt. 665 pg. 481, Awolowo v. Shagari (1979) 6-9 SC, Olofu v. Itodo (2010) 18 NWLR pt. 1225 pg. 545 SC, Diaplong v. dariye (2007) 8 NWLR pt. 1036 pg. 332 SC, Attorney-General of Plateau State v. Goyol (2007) 16 NWLR pt. 1059 pg. 57 CA Also, in Tomoju v. Governor of Kwara State (2006) All FWLR pt. 321 pg. 1365 CA the Court of Appeal held that;
“Where the words used in the Constitution are unambiguous, the natural, grammatical and ordinary meaning should be ascribed to them”
See also Garba v. Federal Civil Service Commission (1998) 1 NWLR pt. 710 pg. 449, Rabiu v. State (1980) 8-11 SC 1, Attorney-General Bendel State v. Attorney-General of the Federation (1981) 10 SC 1, Ali v. Albishir (2008) 3 NWLR pt. 1073 at 94 CA. Therefore, all executive and legislative acts must be done in line with the provisions of the Constitution. See Adeleke v. Oyo State House of Assembly (2007) All FWLR pt. 345 pg. 211 CA.
In my humble view, the provisions of Sections 7(4), 106(d), 205(d), 199(1) (C) and part II of the 3rd Schedule of the 1999 Constitution are clear and unambiguous and must be so interpreted to show their natural meaning.
A careful perusal of all the above stated provisions of the Constitution will lead anyone to a logical conclusion that the act of the Appellants in selling nomination forms to individual candidates did not in any way, breach the Constitution. I resolve the first leg of this issue in favour of the Appellants.
On the second leg of this issue, the appellants’ counsel submitted that fair hearing is beyond doubt not only a common law right, but a Constitutional right guaranteed by Section 36(1) of the Constitution. Counsel relied on the authority of Ezenwaji v. University of Nigeria (UNN) (2006) 3 NWLR pt. 967 pg. 325 at 339 paragragh G.
Learned counsel submitted that the right to fair hearing is so fundamental, that a breach of any of its twins pillars – (a) audi alteram partem (hear the other side) and (b) nemo judex in causa sua (no man shall be a Judge in his own cause) ,is fatal and invalidates any decision reached. Counsel relied on the decision of Olagunju JCA in Omaliko v. Awachie (2002) 12 NWLR pt. 720 pg. 26-27 and Jopal Ltd v. Afribank Nig. Ltd (2003) 8 NWLR pt. 822 pg. 290.
In arguing further, Appellants’ Counsel stated that a hearing can only be fair when all parties to a dispute are given a hearing or an opportunity of being heard. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. Counsel cited Oladoyin v. Adeyemi (2001) 13 NWLR pt. 730 pg. 403 at 423, Otapo v. Sunmonu (1987) 2 NWLR Pt. 58 pg. 587.
Relying on the decision of Nnaemeka-Agu JSC in Kotoye v. Central Bank of Nigeria (1989) 1 NWLR pt. 98 pg. 419 at 448 the learned Justice held thus;
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party is entitled to be heard before deciding had in fact been given opportunity of a hearing. Once an appellate court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside”
Appellants’ Counsel submitted that the trial Judge erred when he held at page 202 of the record of appeal that;
“Although there is no duty on the 1st defendant to hear from plaintiffs, there is unchallenged evidence on record, independent of Exhibit A, that plaintiffs were heard in respect of the misconduct on which Exhibit G is based and they made representation (Exhibit P4) admitting same”
In light of the above quoted statement, Appellant’s Counsel submitted that the said Exhibit P4 was not in any way related to the said allegation of misconduct against the Appellants and was not an admission of the breach of Sections 7(4) and 106(d) of the Constitution. Counsel concluded that a party cannot admit or be convicted for a crime not known to law. He cited Aoko v. Fagbemi (1961) 1 All NLR 400.
Appellants’ Counsel on this issue finally concluded that the right to fair hearing of the appellant was violated with impunity and subsequently the letter of dismissal issued to them cannot stand. Counsel cited Wilson v. AG Bendel State (1985) 1 NWLR Pt. 4 pg. 572 at 592, MacFoy v. UAC (1962) A.C 152, Section 201(1) of the Constitution, Governor of Kwara State & Anor v. Ojibara & Others (2006) 18 NWLR Pt. 1012 pg. 645.
In responding to the appellants’ brief, the counsel to 1st and 2nd respondents argued that Section 197 of the Constitution establishes the appellants’ office, with Section 198 appointing them and 201 stating the procedure for their removal. Learned Counsel further argued that the appellants were removed from office upon the two-third majority votes of members of the Edo State House of Assembly in line with Section 201 of the Constitution. Speaking further, Counsel submitted that the removal of the Appellants from office is on grounds of misconduct as per Exhibit G and pursuant to Section 201(1) and (2) of the Constitution. Learned counsel then submitted that Appellants were lawfully and properly removed from office. Counsel cited Igbe v. Governor of Bendel State (1983) 3 SC 144, Akpomudje v. Governor of Delta State (2003) 9 NWLR pt. 826 pg. 561 at 580.
Let me first say here, that there is no adjectival or substantive law which requires the Governor to hear from the Appellants or conduct inquiry before acting on the address of the House. However, this does not and cannot absolve the House of Assembly of their duty to grant the Appellants fair hearing. The rules of fair hearing are fundamental and cannot be dispensed with under any circumstance. Section 36(1) of the 1999 Constitution clearly states as follows;
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In the interpretation of any provisions of the Constitution, not only the letters but also the spirit behind the Constitution must be taken into consideration. In the determination of a person’s rights and obligations, fundamental human rights provisions under the Constitution cannot be compromised. Even though it appears that Section 201(1) in giving the House of Assembly power to impeach as it were the members of the Edo State Independent Electoral Commission does not contain specific provisions indicative that they are obliged to obey the rules of natural justice (1) audi alteram partem and (2) nemo judex in causa sua, the said provisions being subject to Chapter IV of the Constitution, the House of Assembly must oblige to obey the provisions of Section 36 of the Constitution.
The fundamental nature of fair hearing is exemplified in the various decisions of the Courts. See Ezenwaji v. University of Nigeria (UNN) (2006) 3 NWLR pt. 967 pg. 325 at 339 paragragh G., Oladoyin v. Adeyemi (2001) 13 NWLR pt. 730 pg. 403 at 423, Otapo v. Sunmonu (1987) 2 NWLR pt. 58 pg. 587, Kotoye v. Central Bank of Nigeria (1989) 1 NWLR pt. 98 pg. 419 at 448, Tsokwa Motors (Nig.) Ltd v. UBA Plc (2008) 2 NWLR pt. 1071 pg. 347 SC, NIIT Zaria v. Dange (2008) 9 NWLR pt. 1091 pg. 127 CA.
Let me again cast our mind back to the procedure employed by the Edo State House of Assembly in the first removal of the Appellants from office in March 2007. On Page 88 and 145 of the records marked Exhibit D2 being the letter written by the Edo State House of Assembly dated 19/06/07, Paragraph 4 states as follows:
“The Chairman and members of Edo State Independent Electoral Commission at their appearance before the House on 19th March 2007 admitted that they bypassed political parties by selling forms directly to individual candidates for local government election not sponsored by political parties and thereby violating the clear provision of Section 7(4) and Section 106 of the Constitution of the Federal Republic of Nigeria 1999” (Underlining mine)
The underlined part of the above portion of the record shows that the House of Assembly invited the Appellants and questioned them on the allegation of sale of forms thus giving them fair hearing before removing them from office for misconduct. The hearing before the House on 19/3/2007 cannot be hearing before a newly constituted House. It is however surprising that the House chose not to follow the rules of natural justice before the removal of the Appellants the second time, on the 19th June 2007. The essence of and need for strict compliance with the rules of natural justice cannot be over- emphasized and cannot be waived. The Supreme Court in Olufeagba v. Abdul Raheem (2009) 18 NWLR pt. 1173 pg. 384 held that:
“By virtue of Section 36(1) of 1999 Constitution in the determination of civil rights and obligations including any question or determination of or against any government or authority, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and construed in such a manner as to secure its independence and impartiality. In the instant case, as the appellants were not afforded fair hearing by being invited to make representations, the provisions of Section 36(1) of the Constitution was violated and so the dismissal from employment of the respondents was not in accordance with the law”
(Underlining mine)
Speaking further on the importance of fair hearing, the Apex Court held thus:
“Fair hearing is a constitutional right which is entrenched in the Constitution. It is therefore a constitutional and subsequently a fundamental right which cannot be waived of, which any citizen cannot be unjustly stripped of”
The Supreme Court in First Bank of Nigeria Plc v. TSA Industrial Ltd (2010) 15 NWLR pt 1216 at 247 SC held thus:
“The right to fair hearing is guaranteed by section 36 of 1999 Constitution to every citizen of Nigeria. It cannot be waived; neither can its breach be acquiesced to…”
Also in Miden System Ltd v. Effiong (2011) 2 NWLR pt 1231 at 354 CA, the Court of Appeal held that:
“The principle of fair hearing entrenched in the constitution is so fundamental to the judicial process or administration of justice such that a breach of it in any proceeding nullifies the whole proceedings. A proceeding conducted in breach of fair hearing no matter how conducted, is null and void. The breach of fair hearing is such a fatal virus that irredeemably vitiates any proceedings which it in facts and as such it must be set aside.”
(Underlining mine)

It is trite that the Constitution of the Federal Republic of Nigeria is supreme and anything done which is inconsistent with the provisions of the constitution is to the level of its inconsistency, null and void. See Section 1 of the Constitution, Fashakin Foods v. Shosanya (2006) All FWLR pt 320 at 1059 SC, Attorney-General of the Federation v. Abubakar (2007) All FWLR pt 389 at 1264 CA, Ogboru v. President, Court of Appeal (2007) All FWLR pt 369 at 1221 CA.
From the foregoing, it is settled that the 1st and 2nd respondents acted ultra vires the constitution by not inviting the appellants to appear before the House thus, the premise on which the dismissal was done is wrong and fallacious. A wrong premise can never result in a right conclusion. Since the act complained of does not amount to misconduct and the Appellants were denied fair hearing, the subsequent dismissal of the Appellants contravenes the constitution and is as such, null and void. I resolve this issue in favour of the appellants.
ISSUE FOUR
Whether the lower Court was right to have upheld the appointment of the 3rd-9th respondents as Chairman and members of the Edo State Independent Electoral Commission.
The Appellants’ Counsel on this issue submitted that where an act is a nullity, it is as if it never existed and cited Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 6 NWLR pt. 199 pg. 502 at 538. He stated that since the removal of the appellants was in breach of Section 210(1) of the Constitution, the new appointments made cannot be valid as no replacement would have been made in the eyes of the law. Learned counsel relied on the authorities of Governor of Kwara v. Ojibara (supra), Shitta-Bey v The Federal Public Service Commission (1981) 1 SC 40 and Olaniyan v. University of Lagos (1985) 2 NWLR pt. 9 pg. 599. Counsel argued that Appellants have the constitutional rights to enjoy their fixed tenure which is due to expire on 12th July 2010 and cannot be removed at the pleasure of the 1st respondent. Counsel cited Obi v. INEC (2007) 11 NWLR pt. 1046 pg. 565 at 645.
The 1st and 2nd respondents’ counsel posit that the Appellants having been lawfully removed from office, the new appointments are lawful though still subject to the approval of the State House of Assembly. Counsel cited Shona Jason Ltd v. Omega Air Ltd (2006) 1 NWLR pt. 960 pg. 1 at 34 and Section 198 of the Constitution.
The 3rd-9th defendants’ counsel argued in line with the 1st and 2nd defendants. Counsel submitted that the appointment of the 3rd-9th defendant is valid and relied on Section 198 of the Constitution. Counsel however argued that validity of the said appointment is subject to the decision of this Court. He stated that it is not disputed that the appellants had a fixed term of office but that that does not derogate itself from the provision of the Constitution stated above. Learned Counsel cited Momoh v. CBN (2007) 5 NWLR pt. 295 pg. 420 at 422 ratio 11, Osisanya v. Afribank (2007) All FWLR pt. 360 pg. 1480 at 1495 among others but concluded that reinstatement is usually reluctantly granted by the courts but is discretionary depending on the circumstances of the case. Appealing to pity, counsel submitted that huge sums of money have already been spent to conduct the said election and the winners already functioning in their respective offices. The implication of reinstatement of appellant according to him will bear grave consequences on the State. He surprisingly appealed that this Court to grant the reliefs of the appellants even though it is not a trial Court as this Court is clothed with the power to do so. He cited Agusiogbo v. Onyekwelu (2003) 14 NWLR pt. 839 pg. 35 at 54 C-D ratio 6, Section 16 Court of Appeal Act, AG Anambra v. Okeke (2002) 12 NWLR pt. 782 pg. 575.
There is no doubt that this issue is an incidental question flowing from issues one, two and three. This is because the validity of this issue is dependent on the validity of the earlier resolved issues. Where it is ad idem that the foundation of a house is faulty how then can a party complain of faults with the decking? If as resolved that the act of the appellants did not amount to misconduct, definitely there was no vacancy in their offices as to warrant the appointment of any other persons into the said offices. You cannot place something on nothing and expect it to stand. It will fall like a pack of cards. Per Lord Denning in MacFoy v. UAC (Supra). An appointment to a post where there is no vacancy is no appointment. The questions posed for determination in the originating summons are answered in the negative.
The issue now is what are the appropriate orders to make in the circumstances of this case? The question is pertinent because the appellants’ term of office expired since 2010. One of them is late and has been replaced on record by one of his heirs. Obviously, the Appellants cannot be reinstated to the office unlawfully wrestled from them. Any order of this court reinstating the appellants will be impotent. A Court will not make an order which is unenforceable, ineffective, impotent or abortive. See Ekpeyong v Nyong (1975) 2 SC 71. Apart from the fact that the Appellants had been removed from office, the 3rd-9th Respondents between 2007 and 2012 had served their five year tenure of the office to which they were illegally appointed.
The principles governing the measure of award of damages for wrongful termination of employment has been outlined by the apex court in Shell Petroleum Development Company v. Olanrewaju (2008) 18 NWLR pt. 1118 pg. 1 SC thus:
“In cases of wrongful dismissal of an employee, the measure of damages is, prima facie, the amount the employee would have earned had the employment continued according to the contract of employment subject to deduction in respect of amount accruing from any other employment which the employee in minimizing damages either obtained or should reasonably have obtained…”
Also, the Court of Appeal in UBN Plc v. Chinyere (2010) 10 NWLR pt. 1203 pg. 453 on the measure for damages for wrongful dismissal held thus:
“Where the termination of a contract of service is wrongful, the measure of damages the plaintiff would be entitled to would be salaries for the length of time during which the notice of termination would have been given in accordance with the contract of employment. Also, the plaintiff would be paid other legitimate entitlement due to him at the time the employment was brought to an end”
See also Chemiron Ltd v. Egbujuonuwa (2007) All FWLR pt. 395 pg. 444, Ifta v. Shell Petroleum development Company (2006) ll FWLR pt. 314 pg. 305. While reliefs (a), (b), (d) and (f) in the originating summons are granted, reliefs (c), (e) and (g) must be refused.
The Appellants are to be paid their salaries and allowances from 19th June 2007 to 10th July 2010. The judgment of the Edo State High Court delivered by Justice P. Imoedemhe in Suit No B/216/OS/07 is hereby set aside. The Appeal is hereby allowed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of perusing, before now, the Judgment in draft prepared and just delivered by the Hon. Presiding Justice, H. M. Ogunwumiju, JCA. Having equally read the briefs of argument of the learned counsel to the respective parties vis-a-vis the records of appeal, as a whole, I cannot but wholeheartedly concur with the reasoning and conclusion reached in the said Judgment, to the conclusive effect that the present appeal is meritorious.
Hence, being privileged to adopt the reasoning and conclusion reached in the lead Judgment as mine, I hereby unhesitatingly allow the appeal and set aside the Judgment of the Edo State High Court, delivered on 10/7/10 by P. I. Imoedembe, J.; in Suit No.B/216/0S/07. I equally abide by the consequential orders for the payment of the Appellants’ salaries and allowances from 19/6/07 to 10/7/10.

TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read before now, the draft of the judgment, prepared and just delivered by my Lord, HELEN MORONKEJI OGUNWUMIJU, JCA. The insightful and lucid opinion expressed in the said judgment, clearly represents my thoughts on this appeal. Hence, I am in complete agreement with his Lordship.
I only feel obliged to say a word in support of the lead judgment, with respect to the imputation of misconduct to the appellants in the sale of forms to individual political aspirants who were not sponsored by political parties, to contest local government elections, in Edo State. The removal from office of the appellants, was clearly predicated on the allegation or imputation of misconduct, pursuant to Section 201 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. See Exhibit G of 19th June, 2007 issued by the 1st respondent in removing the appellants from office as Chairman and members respectively, of the Edo State Independence Electoral Commission.
Section 201 (1) and (2) of the 1999 Constitution provides, inter alia:
“201 (1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
(2) This section applies to the offices of the chairman and members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.”
Undeniably, the removal from office of the appellants was not because of their inability to discharge the functions of their offices, but for “misconduct.”
Now, what will amount to an act of misconduct, by political office holders such as the appellants, before they can be removed from office? The 1999 Constitution, provides the answer to that poser in Section 205 (d) thereof, which says:
205 (d) “Misconduct means breach of the Oath of Allegiance or Oath of office of a member or a breach of the provisions of this Constitution or bribery and corruption or false declaration of assets and liabilities or conviction for treason or treasonable felony.”
Exhibit G by which the 1st respondent removed the appellants from their offices, is clearly economical as to the act of misconduct which led to their removal from office. Nevertheless, I am mindful of the allegation brought against the appellants at the Edo State House of Assembly, that the appellants sold forms directly to individual political aspirants who were interested in participating in the Edo State Local government Elections. And that was what led to the resolution of the said House of Assembly, to the 1st respondent to remove the appellants from their offices.
The function of the appellants as stipulated at part II of the 3rd schedule to the 1999 Constitution, is at paragraph 4 thereof to wit:
“4. the commission shall have the power –
(a) to organize, undertake and supervise all elections to local government councils within the State.
(b) to render such advice as it may consider necessary to the Independent National Electoral Commission on the compilation of and the register of voters in so tar as that register is applicable to Local Government elections in the State.”
It is crystal and clear to me that the appellants who were eminently empowered constitutionally, “to organize, undertake and supervise all elections to local government councils within” Edo State, had the responsibility of selling nomination forms to individual political aspirants wishing to participate in the elections, to political offices in the Local Government Councils in Edo State. There is no allegation against the appellants that the proceeds from the sale of nomination forms to individual political aspirants, were misappropriated by them. If that were so, then under Section 205(d) of the 1999 constitution, an allegation of “corruption” and invariably the imputation of “misconduct” could have fixed the appellants on the spot. But that was not the situation. Therefore, to my mind, the garb of “misconduct” put on the appellants, which led to their removal from their offices, does not fit them. That garb, was no more than giving a dog, a bad name, in order to kill it!
The political tendencies in Nigeria that when there is a change in the Government of the country or state, then all existing members of commission put in place by a previous government, must willy-nilly be changed by a new government, smacks of a kindergarten approach to governance and counter productive to constitutional democracy. It is therefore instructive that the admonition by the Supreme Court in Governor of Kwara state v. Ojibara & Ors (2006) 18 NWLR (Pt.1012) 645, be heeded, by heads of governments at the Federal and State levels. This is what the apex Court said:
“The tenure of the Governor of a State under the 1999 constitution as well as that of the State Legislature is four years. The constitution however grants the members of a State Independent Electoral Commission, a tenure of five years. It ought not to escape attention that the deliberate purpose of the Constitution is to create an Electoral Commission, the lifespan of which exceeds those of both Governor and State legislature. This is done with a view to create continuity and stability in the electoral process and governance. The same is done in relation to the State Civil Service Commission and the State Judicial Service Commission. It is not the intendment of the Constitution that the membership of those commissions should change with the fortunes of the political parties in a State.”
It is for this and the fuller reasons lucidly articulated in the lead judgment that l, too allow this appeal.
I, abide by the consequential orders including that as to costs, contained in the lead judgment, accordingly.