ZAMFARA STATE HOUSE OF ASS. SERVICE COMM & ORS v. GOVERNOR OF ZAMFARA STATE & ORS
(2015)LCN/7872(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of May, 2015
CA/S/60/2013
RATIO
PRACTICE AND PROCEDURE: REINSTATEMENT AND INJUNCTION; WHETHER THE IMPROPER REMOVAL FROM OFFICE IS NULL AND VOID AND THE EFFECT OF THE ORDER OF REINSTATEMENT
In GOVERNOR OF KWARA STATE v ALHAJI ISSA OJIBARA & ORS (2006) 18 NWLR (PT 1012) 645, the Kwara State Governor unlawfully and unconstitutionally dissolved the Kwara State Independent Electoral Commission and terminated the appointment of Chairman and members of the said commission. The Respondents at the Supreme Court were the plaintiffs at Ilorin High Court Kwara State. They issued Originating Summons against the appellants challenging the dissolution and seeking for injunction to restrain the defendants. They also sought for reinstatement of the chairman and members of the Kwara State Independent Electoral Commission. The High Court ruled against the plaintiffs. They then appealed to the Court of Appeal which allowed the appeal and granted all the reliefs sought. This led to the appeal challenging the judgment of the Court of Appeal at the Supreme Court. Delivering the leading judgment Oguntade JSC, said: “In the instant case, the court below found that the Respondent were removed from office in flagrant attempt to override clear provisions of the Constitution. The court below pronounced the removal from office of the plaintiffs null and void. The consequence of that pronouncement is that in the eyes of the law, the respondents had not been removed from office. In EPEROKUN v UNIVERSITY OF LAGOS (1986) 4 NWLR (PT 34) 162 at 201, this court relied on the observation of Viscount Kilmur in VINE v NATIONAL DOCK LABOUR (1957) AC. 488 at 499-500. For its views that an improper removal from an office specially protected by law would be deemed a null act, in the event. per. TUNDE O. AWOTOYE, J.C.A.
JUSTICES:
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria
Between
ZAMFARA STATE HOUSE OF ASS. SERVICE COMM & ORS – Appellant(s)
AND
GOVERNOR OF ZAMFARA STATE & ORS – Respondent(s)
TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against part of the decision of the High Court of Zamfara State, presided over by the Hon. Justice Bello Aliyu Gusau delivered on 21/12/2012 in suit No ZMS/GS/SS/2011.
The appellants were the plaintiffs at the lower Court. The plaintiffs commenced an action at the court below by way of originating summons to challenge the dissolution of the 1st and 9th plaintiffs/commission and the removal of 2nd-8th and 10th-12th appellants from the office as members of the 1st and 9th appellants.
After hearing the parties, the court below though found in favour of the appellants that the dissolution of the 1st and 9th appellants and the removal of 2nd to 8th and 10th-12th appellants were unconstitutional, it refused the reliefs No 9,10,12,13 and 14 for injunction and reinstatement.
Miffed by the said decision, the appellants by a notice of appeal filed on 19/1/2012 appealed challenging the decision on 1 ground which reads:
“GROUND
The learned trial Judge fell into grave error when in declining to make an order reinstating the Appellants to their employment and restraining the Respondent from appointing other persons to replace the appellants he held thus-
“similarly, when a court holds that statutorily protected employment has been terminated otherwise than in accordance with the prescription of the Law that court would proceed to make a consequential order for the reinstatement of the employee and restrain the offending party who has demonstrated a disposition from taking any steps or doing anything that would interfere with the rights, function and powers of the aggrieved party.
But this case ease present a rather peculiar situation. The defendants in this case have clearly demonstrated their unwillingness to work with the 2nd-9th and 11th-15th plaintiffs hence it is clear that there would be no harmony in the working relationship between the parties to the detriment of the good people of Zamfara State whom all parties are supposed to be serving.
Furthermore, the position of the 10th-15th plaintiffs complicates the situation even the more. The 10th plaintiffs is in law the body responsible for conducting elections to the third tier of government (i.e. the Local Government Councils) in this country. This court takes judicial notice of the fact that the tenure of local government councils in Zamfara State have since expired and that all such councils in the State presently are being manned by caretaker committees or so called sole administrator against the spirit of democratically elected councils envisaged by the Constitutions supra.
It seems to me that given the very deep seated difference and consequent disharmony between the parties, it is unlikely that the defendants before this court would provide the necessary funding and enabling environment such as would enable the 10th plaintiffs to carry out its function of organizing and conducting local government elections to usher in democratically elected council should this court direct that the 11th-15th plaintiffs be reinstated to their various offices or that the defendants be restrained from making appointments to reconstitute these offices. To a slightly less extent, the same may be said for the 2nd-9th plaintiffs.
It seems therefore that no practical purpose would be served by making an order of reinstatement or restraint in favour of the plaintiffs and against the defendants. In any event, it would appear to be futile to make such orders as it would be impossible to monitor and enforce it. For this reason, I am in agreement with the Abdul Ahmed learned Director of Civil litigation for the Defendants that the plaintiffs should not be forced on the defendants by an order of reinstatement as that would be counter-productive.
Therefore, to the extent that they seek to restrain the defendants in relation to the 2nd-9th and 11th-15th plaintiffs or reinstate the said plaintiffs or publicize the reinstatement of the said plaintiffs, this court will decline or refuse reliefs 9, 10, 12, 13, 14, 19, 20 and 21 claimed by the plaintiffs and same are hereby dismissed as this would amount to imposing the 2nd-9th and 11th-15th plaintiffs on the defendants as well as clog the attainment of a smooth transition and the good administration and governance of Zamfara State.”
The appellants subsequently, on 12/2/2014, sought and obtained leave to amend the said Notice of Appeal.
The amended Notice of Appeal was filed on 3/3/2014.
The amended Notice of appeal contains 1 ground of appeal which read (excluding the particulars) thus:
“The learned trial Judge fell into grave error when in declining to make an order reinstating the Appellants to their employment and restraining the Responded from appointing other persons to replace the appellants he held thus-
“similarly, when a court holds that statutorily protected employment has been terminated otherwise then in accordance with the prescription of the Law that court would proceed to make a consequential order for the reinstatement of the employee and restrain the offending party who has demonstrated a disposition from taking any steps or doing anything that would interfere with the rights, function and powers of the aggrieved party.
But this case ease present a rather peculiar situation. The defendants in this case have clearly demonstrated their unwillingness to work with the 2nd-9th and 11th-15th plaintiffs hence it is clear that there would be no harmony in the working relationship between the parties to the detriment of the good people of Zamfara State whom all parties are supposed to be serving.
Furthermore, the position of the 10th-15th plaintiffs complicates the situation even the more. The 10th plaintiffs is in law the body responsible for conducting elections to the third tier of government (i.e. the local Government Councils) in this country. This court takes judicial notice of the fact that the tenure of local government councils in Zamfara State have since expired and that all such councils in the State presently are being manned by caretaker committees or so called sole administrator against the spirit of democratically elected councils envisaged by the Constitutions supra.
It seems to me that given the very deep seated difference and consequent disharmony between the parties, it is unlikely that the defendants before this court would provide the necessary funding and enabling environment such as would enable the 10th plaintiffs to carry out its function of organizing and conducting local government elections to usher in democratically elected council should this court direct that the 11th-15th plaintiffs be reinstated to their various offices or that the defendants be restrained from making appointments to reconstitute these offices. To a slightly less extent, the same may be said for the 2nd-9th plaintiffs.
It seems therefore that no practical purpose would be served by making an order of reinstatement or restraint in favour of the plaintiffs and against the defendants. In any event, it would appear to be futile to make such orders as it would be impossible to monitor and enforce it. For this reason, I am in agreement with the Abdul Ahmed learned Director of Civil litigation for the Defendants that the plaintiffs should not be forced on the defendants by an order of reinstatement as that would be counter-productive.
Therefore, to the extent that they seek to restrain the defendants in relation to the 2nd-9th and 11th-15th plaintiffs or reinstate the said plaintiffs or publicize the reinstatement of the said plaintiffs, this court will decline or refuse reliefs 9, 10, 12, 13, 14, 19, 20 and 21 claimed by the plaintiffs and same are hereby dismissed as this would amount to imposing the 2nd-9th and 11th-15th plaintiffs on the defendants as well as clog the attainment of a smooth transition and the good administration and governance of Zamfara State.”
The record of appeal in this appeal was deemed compiled and transmitted to this court on 30/4/2015. Parties thereafter filed and exchanged briefs of argument.
The amended appellant’s brief of argument was deemed filed on 30/4/2015. The brief was settled by John C. Shaka; on behalf of the appellant.
The appellant’s counsel formulated one lone issue for determination to wit:-
“whether the court below after having found and held that the termination of appointment of the 2nd to 8th and 10th to 12th appellants was unconstitutional, unlawful, null, void and of no effect whatsoever was right in refusing to order that they be reinstated to their offices and restrain the respondents from interfering with their performance of their duties or appointing any person to replace them.”
Learned counsel submitted that the court below unreasonably allowed unbalanced public policy consideration to becloud the clear intention of relevant constitutional and statutory provisions. He cited ONWUCHEKA v NDIC (2002) 9 NSCQR 451 at 464 – the dictum of Ayoola JSC.
Learned counsel submitted that the relevant provisions of the State Laws and the Constitution do not contemplate the truncation by any authority of the tenure of the appellants as guaranteed by the Constitution and State Laws. He referred to Sections 197, 199(1) and 201 of the Amended 1999 Constitution and Sections 3, 5, 6(2) of the Zamfara State Independent Electoral Commission Law. No 10 of 2010.
Learned counsel contended that the duty of the court below was to interfere the said laws to protect what it sets out to protect or guide what it set out to guide. He relied on UZUOKWU v EZEONU (1991) 6 NWLR PT 200 p.708; Learned counsel submitted that the clear provisions of the Constitution must be revered and given effect to. He referred to GOV, KWARA STATE v OJIBARA (2006) 18 NWLR PT 1012 page 645 at 660; ALI v GOV, BORNO STATE (2008) ALL FWLR PT 408.
He submitted that the court below was wrong to have declined to order the reinstatement of the appellants to their office and failed to have restrained the respondents from interfering with the discharge of their duties/functions and that the lower Court had no discretion to exercise in such matter.
He urged the court to remedy the situation by setting aside the aspect of the judgment of the court below refusing the reliefs sought by the plaintiffs. He urged the court to grant reliefs 12 to 21 of the Amended Originating Summons and allow the appeal.
The Respondent’s brief of argument was settled by Muhammed Sani Katu of the Ministry of Justice Zamfara State and filed on 28/4/14 but deemed on 26/11/14. He formulated one issue for determination as follows:- Whether considering the supervening circumstance the court below was right in refusing the appellant relief No. 9, 10, 11, 12, 13 and 14 for reinstatement.
Learned Respondent’s counsel submitted that there was a supervening circumstance which made it impossible for the court below to order reinstatements of the appellants. He contended that the lower Court rightly considered what was in the interest of public peace and harmony. He relied on ISIEVWORE v NEPA (2002) 13 NWLR (PT 784) 417 at 434.
He further submitted that the only remedy open to the appellants was the award of damages in the circumstances of the case. He cited IGBE v GOVERNOR OF BENDEL STATE & ANOR (1983) NSCC 54 at 56; He urged that both damages and reinstatement could not be awarded at the same time. He relied on P.T.I. v NESIMONDE (1995) 6 NWLR PT 402. He added that an order of injunction should also not be granted. He cited ILODIBA v NIGERIA CEMENT COMPANY (1997) 7 NWLR (PT 512) 174 at 176 & 177.
He referred to SAMUEL IGBE v GOVERNOR OF BENDEL STATE (1983) 1 SCNLR 73 where the Supreme Court refused to order re-instatement of a member of the Public Service Commission who was removed in the gross violation of the relevant provisions of the Constitution but ordered the payments of damages because supervening events made impossible.
He submitted that an unwilling employer would not be compelled to keep an employee he no longer wanted. He relied on SAVANNA BANK v FAKOKUM (2002) 1 NWLR (PT 749) 544.
He urged the court to resolve the sole issue in the Respondents favour and dismiss the appeal.
I have carefully considered the submission of learned counsel on both sides as well as the contents of the record of appeal. I have also deeply considered the sole issue formulated by each of the parties. I am of the respectful view that the issue as formulated by the Appellants is wide enough and apposite for the just determination of the appeal. I shall therefore adopt it.
It is necessary for clarity’s sake to refer to the reliefs claimed by the plaintiffs at the lower Court. The reliefs are
“(1) A declaration that the purported dissolution of the 1st plaintiffs (i.e. the Zamfara State House of Assembly Service Commission) by the 1st Defendants on 30th May, 2011 or thereabout is unlawful, illegal, unconstitutional, ultra vires the powers of the 1st defendants and therefore null, void and of no effect whatsoever;
(2) A declaration that the purported dissolution of the 1st plaintiff (i.e. the Zamfara State House of Assembly Service Commission) and consequent removal of the 2nd to 8th plaintiffs as Chairman/members of the said Commission by the 1st Defendants on 30th May, 2011 or thereabout is unlawful, illegal, unconstitutional, ultra vires the powers of the 1st defendants and therefore null, void and of no effect whatsoever;
(3) A declaration that the purported dissolution of the 1st plaintiffs (i.e. the Zamfara State House of Assembly Service Commission) and consequent removal of the plaintiff as Secretary of the said Commission by the 1st Defendant on 30th May, 2011 or thereabout is unlawful, illegal, unconstitutional, ultra vires the power of the 1st defendant and therefore null, void and of no effect whatsoever;
(4) A declaration that the purported dissolution of the 10th plaintiffs (i.e. Zamfara State Independent Electoral Commission (ZASIEC)) by the 1st defendant on 30th May, 2011 or thereabout is unlawful, illegal, unconstitutional, ultra vires the powers of the 1st defendants and therefore null, void and of no effect whatsoever;
(5) A declaration that the purported dissolution of the 10th plaintiff (i.e. Zamfara State Independent Electoral Commission) and consequently removal of the 10th to 15th plaintiffs as members of the said Commission by the 1st Defendant on 30th May, 2011 or thereabout is unlawful, illegal, unconstitutional, ultra vires the powers of the 1st Defendants and therefore null, void and of no effect whatsoever;
(6) An order of this Honorable Court setting aside the purported dissolution of the 1st plaintiffs (i.e. the Zamfara State House of Assembly Service Commission) by the 1st Defendants on 30th May, 2011 or thereabout;
(7) An order of this Honorable Court setting aside the purported removal from office of the 9th plaintiff as Secretary to Zamfara State House of Assembly Service Commission by the 1st Defendant on 30th May, 2011 or thereabout;
(8) An order of this Honorable Court setting aside the purported dissolution of the 10th plaintiff (i.e. Zamfara State Independent Electoral Commission) by the 1st defendant on 30th May, 2011 or thereabout;
(9) An order of this Honorable Court restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from interfering in any manner with the performance by the 1st to 8th plaintiffs of their statutory duties, functions and powers as a commission or chairman and or members of the Zamfara State House of Assembly Service Commission until their tenure as such expires or is House of Assembly Service commission Law of 2010.
(10) An order of this Honorable Court restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from interfering in any manner with the performance by the 9th plaintiffs of his statutory duties, functions and powers as a Secretary to the Zamfara State House of Assembly Service Commission until his tenure as such expires or is otherwise lawfully determined in accordance with Zamfara State House of Assembly Service Commission Law 2010.
(11) An order of this Honorable court restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from interfering with the performance by the 10th to 15th plaintiffs of their constitutional/statutory duties, functions and powers as a commission or chairman and/or members of the Zamfara State Independent Electoral Commission (ZASIEC) until the tenure of each of the 11th to 15th plaintiffs expires or is otherwise lawfully determined in accordance with the extant provisions of the Constitution and the Zamfara State House of Assembly Service Commission Law 2001 as amended;
(12) An order of this Honorable Court restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from constituting another Zamfara State House of Assembly Service Commission or appointing any persons as such until the tenure of each plaintiffs appointment expires or is otherwise lawfully determined in accordance with the extents provisions of the Zamfara State House of Assembly Service Commission Law 2010.
(13) An order of this Honorable Court restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from appointing any person to act, perform or exercise the duties, functions and powers of the 9th plaintiffs or recognizing or dealing with other person as Secretary to the 1st plaintiffs (i.e. the Zamfara State House of Assembly Service Commission) until the tenure of the 9th plaintiff expires or is otherwise lawfully determined in accordance with the extent provisions of the Zamfara State House of Assembly Service Commission Law 2010;
(14) An order of perpetual injunction restraining the 1st, 2nd and 3rd Defendants by themselves, their agents, privies, representatives from constituting another Zamfara State Independent Electoral Commission or appointing any person to act, perform or exercise the duties, functions and powers of the 10th to 15th plaintiffs or recognize or deal with any other body or persons as such until the tenure of each plaintiff expires or is otherwise lawfully determined in accordance with the extent provisions of the provisions of the 1999 Constitution, as amended and the Zamfara State Independent National Commission Law 2001, as amended.
(15) A mandatory order directing the 1st, 2nd and 3rd Defendants to forthwith effect the payment to the 1st-8th plaintiffs of all their monthly salary, emolument and sundry entitlements from 1st June, 2011 until judgment and thereafter until the appointments of each of the 1st to 2nd to 8th plaintiffs are lawfully determined in accordance with the Zamfara State House of Assembly Service Commission Law 2010.
(16) A mandatory order directing the 1st, 2nd and 3rd Defendants to forthwith effect payment to the 2nd-8th Plaintiffs of all their monthly salary, emolument and sundry entitlements that have or may subsequently accrue from 1st June, 2011 until judgment and thereafter until the appointments of each of the 1st to 2nd to 8th plaintiffs are lawfully determined in accordance with the Zamfara State House of Assembly Service Commission Law 2010.
(17) A mandatory order directing the 1st, 2nd and 3rd Defendants to forthwith effect payment to 9th plaintiffs of all his monthly salary, emolument and sundry entitlements that have or may subsequently accrue from 1st June, 2011 until judgment and thereafter until his appointment is lawfully determined in accordance with the Zamfara State House of Assembly Service Commission Law 2010.
forthwith effect the payment to the 11th to 15th plaintiffs all their monthly salary, emolument and sundry entitlement that have or may subsequently accrue from 1st June, 2011 until judgment and thereafter until the appointments of each of the 11th to 15th plaintiffs are lawfully determined in accordance with the Zamfara State House of Assembly Service Commission Law 2010.
(19) An order directing the 1st, 2nd and 3rd Defendants to announce or publish the reinstatement of the 2nd to 8th plaintiffs as Chairman and or members of the Zamfara State House of Assembly Service Commission in the Zamfara State Radio and Television Service as well as to National dailies.
(20) An order directing the 1st, 2nd and 3rd Defendants to announce or publish the reinstatement of the 9th plaintiffs as Secretary to the Zamfara State House of Assembly Service Commission in the Zamfara State Radio and Television Service as well as two National dailies.
(21) An order directing the 1st, 2nd and 3rd Defendants to announce or publish the reinstatement of the 11th to 15th plaintiffs as members of the Zamfara State Independent Electoral Commission (ZASIEC) in the Zamfara State Radio and Television Service as well as two national dailies.”
The facts of this case are as follows:
The 1st appellant was a State Executive body established under Section 3(1) & (2) and 6(1), (2) & (3) of the Zamfara State House of Assembly Commission Law 2010. The 9th appellant was a body constitutionally established under Section 197, 199(1) and 201 of the Constitution of the Federal Republic of Nigeria.
The 2nd-8th and 10th-12th appellants were members/Secretary of the 1st and 9th appellants in 2011, upon the swearing in of the then Executive Governor of Zamfara State Hon. Abdulaziz Yari dissolved all parastatals and commissions in Zamfara State except the Judicial Service Commission and Civil Service Commission. This led to the action now on appeal.
The lower Court as aforestated refused reliefs No. 9, 10, 12, 13 and 14 for injunction and reinstatement. Why? Aliyu Gusau J., the trial Judge explained thus:
“Similarly, when a court holds that a statutorily protected employment has been terminated otherwise than in accordance with the prescription of the law that court would proceed to make a consequential order for the reinstatement of the employee and restrain the offending party who has demonstrated a disposition from taking any steps or doing anything that would interfere with the rights, functions and powers of the aggrieved party.
But this case present a rather peculiar situation. The defendants in this case have clearly demonstrated their unwillingness to work with the 2nd-9th and 11th-15th Plaintiffs hence it is clear that there would be no harmony in the working relationship between the parties to the detriment of the good of people of Zamfara State whom all the parties are supposed to be serving.
Furthermore, the position of the 10th-15th Plaintiffs complicates the situation even the more. The 10th plaintiff is in law the body responsible for conducting the elections to the third tier of government (i. e. the local government councils) in this Country. This court takes judicial notice of the fact that the tenure of local government councils in Zamfara State have since expired and that all such councils in the State presently are been manned by caretaker committees or so called sole administrators (sic) against the sprit of the democratically elected councils envisaged by the Constitution supra.
It seems to me that given the very deep seated difference and consequent disharmony between the parties, it is unlikely that the defendants before this court would provide the necessary funding and enabling environment such as would enable the 10th plaintiff to carry out its functions of organizing and conducting local government elections to usher in democratically elected councils should this court direct that the 11th-15th plaintiffs be reinstated to their various offices or that the defendants be restrained from making appointments to reconstitute these offices. To a slightly less extent, the same may be said for the 2nd-9th plaintiffs.
It seems therefore that no practical purpose would be served by making an order of reinstatement or restrained in favour of the plaintiffs and against the defendants. In any event, it would appear to be futile to make such order as it would be impossible to monitor and enforce it. For this reason, I am in agreement with Abdul Ahmed learned Director of Civil Litigation for the defendants that the plaintiffs should not be forced on the defendants by an order of reinstatement as that would be counter-productive.”
The wrongfulness of the dissolution of 1st and 9th plaintiffs/commission is not being challenged. There is no appeal against the findings of the lower Court to this effect. What is being challenged is the refusal of the lower Court to order reinstatement and injunction.
In GOVERNOR OF KWARA STATE v ALHAJI ISSA OJIBARA & ORS (2006) 18 NWLR (PT 1012) 645, the Kwara State Governor unlawfully and unconstitutionally dissolved the Kwara State Independent Electoral Commission and terminated the appointment of Chairman and members of the said commission.
The Respondents at the Supreme Court were the plaintiffs at Ilorin High Court Kwara State. They issued Originating Summons against the appellants challenging the dissolution and seeking for injunction to restrain the defendants. They also sought for reinstatement of the chairman and members of the Kwara State Independent Electoral Commission. The High Court ruled against the plaintiffs. They then appealed to the Court of Appeal which allowed the appeal and granted all the reliefs sought.
This led to the appeal challenging the judgment of the Court of Appeal at the Supreme Court. Delivering the leading judgment Oguntade JSC, said:
“In the instant case, the court below found that the Respondent were removed from office in flagrant attempt to override clear provisions of the Constitution. The court below pronounced the removal from office of the plaintiffs null and void. The consequence of that pronouncement is that in the eyes of the law, the respondents had not been removed from office. In EPEROKUN v UNIVERSITY OF LAGOS (1986) 4 NWLR (PT 34) 162 at 201, this court relied on the observation of Viscount Kilmur in VINE v NATIONAL DOCK LABOUR (1957) AC. 488 at 499-500. For its views that an improper removal from an office specially protected by law would be deemed a null act, in the event.
I hold the view that the appellant has right of reinstatement to his former position and the respondents has the correlative duty by the combined operation of Section 147 of the Act 20 of 1963 and Section 11 of the Act No 1 of 1964 to replace the appellant in the position he occupied before events which culminated in Exhibits D aforesaid, and so to restore the status quo ante his purported retirement. See also OLANIYAN v UNIVERSITY OF LAGOS (1985) 2 NWLR (PT 9) 599. It is important to bear in mind that we are concerned with the infraction of a constitutional provision.”
Ojibara’s case (supra) is directly relevant to this appeal.
Indeed in this appeal, the infractions of the provision of the Constitution with regards to 9th plaintiff commission, and a validly made law as regards the 1st plaintiff commission are in issue here. The provision of the law should not be ridden rough-shod and trampled upon by any authority. Such infractions should not be excused in any decent society. The Constitution is the Supreme law of the land. Any interpretation, that in a bid to excuse the recklessness of the executives, impliedly amends the provision of the Constitution, to justify the inexcusable and unjustifiable infringement of the Constitution or law, should not be adopted. In my respectful view, the lower Court having held that the dissolutions of the two commissions by the Respondents were unconstitutional, it should have gone ahead to grant the reliefs of the injunction and reinstatement sought by the plaintiffs. See OJIBARA’S CASE (SUPRA).
I resolve the sole issue in favour of the appellants. In the circumstance, I hereby allow this appeal and hereby set aside the decision of the court below dismissing reliefs, 9, 10, 12, 13, 14, 19, 20 and 21 sought in the amended Originating Summons. The said reliefs are hereby granted in addition to reliefs 15, 16, 17 and 18 of the amended Originating Summons granted by the lower Court.
Cost of N200,000 is assessed to be paid by the Respondents in favour of the appellants.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother, TUNDE O. AWOTOYE, J.C.A. and I agree with his reasoning and conclusions, which I adopt as mine.
I allow the appeal and abide by the consequential orders contained in the lead judgment.
MUHAMMED L. SHUAIBU, J.C.A.: I have had the opportunity of reading in draft, the judgment just delivered by my learned brother, Tunde O. Awotoye, JCA. I agree with the reasoning and conclusions contained therein.
The appeal is on the power of the State Governor to dissolve commissions and parastatals established pursuant to the Provisions of Section 197, 199(1) and 201 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. These bodies are as follows:-
(a) State Civil Service Commission,
(b) State Independent Electoral Commission, and
(c) State Judicial Service Commission.
By virtue of Section 201(1) of the 1999 Constitution, any person holding any of the office 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 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 the instant case, the lower court had found that the 2nd-8th and 10th-12th Appellants were removed from their respective offices other than in accordance with the provision of Section 201(1) of the Constitution above, but declined to re-instate them insisting that doing so would be counter productive.
The law is settled that in the interpretation of a statute including the Constitution; where the words of the statute are clear and unambiguous, the words must be given their plain and ordinary meaning.
In the instance case; the lower court having pronounced the removal of the 2nd-8th, 10th-12th Appellants from their various offices null and void, the legal consequence is that they have not been removed in the first place.
On the whole, I also hold that there is merit in the appeal which is also allowed by me. I abide by the consequential orders including the order of costs as contained in the leading judgment.
Appearances
E.I. OgizaFor Appellant
AND
Surajo Abdullahi (D.D.C.L.) Moj. Gusau For Respondent
