AGHIMIEN & ORS v. EXECUTIVE GOVERNOR, EDO STATE & ORS (2021)

AGHIMIEN & ORS v. EXECUTIVE GOVERNOR, EDO STATE & ORS

(2021)LCN/15167(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, March 25, 2021

CA/B/216/2015

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

1. ELDER J.O. AGHIMIEN 2. T.E OGBEIDE-IHAMA 3. EDWARD AIGBANGBEE APPELANT(S)

And

1. THE EXECUTIVE GOVERNOR, EDO STATE 2. THE ATTORNEY GENERAL, EDO STATE 3. EDO STATE HOUSE OF ASSEMBLY RESPONDENT(S)

RATIO

EFFECT OF THE FAILURE OF A PART TO MAKE A COUNTER SUBMISSIONS ON AN ISSUE

My lords, it does appear that the 1st and 2nd Respondents did not give this issue any thought and thus did not make any submissions on issue five. In law, the failure of the 1st and 2nd Respondent to make any counter submissions on issue five would simply amount to a concession by them that indeed when the Court below proceeded to deliver its judgment dismissing the Appellants’ Suit for being statute barred by virtue of Section 2(a) of the Public Officers Protection Law, it was really on a voyage of discovery of its own and thereby did so without jurisdiction when it arrived at its decision dismissing the Appellants’ Suit. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC.,(as he then was now CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA; Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111. Be that as it may, in law failure by one party to counter argument of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

OPTIONS AVAILABLE TO A RESPONDENT WHO INTENDS IN AN APPEAL TO RAISE AND OR CANVASS ISSUES OUTSIDE THE PURVIEW OF THE GROUNDS OF APPEAL FILED BY AN APPELLANT

… in law, a Respondent who intends in an appeal to raise and or canvass issues outside the purview of the grounds of appeal filed by an Appellant has open to him one of two options, namely; to Cross appeal or to file a Respondent’s Notice. Thus, in the absence of either a Cross Appeal and or a Respondent’s Notice, a Respondent is not at liberty to either formulate and or canvass issues outside the purview of and thus not arising from any of the valid grounds of appeal filed by an Appellant. I therefore, consider all the submissions of learned counsel for the 3rd Respondents on the exclusive jurisdiction of the National Industrial Court over the claims of the Appellants, and not arising from any of the five grounds of appeal in the Appellants’ Amended Notice of Appeal, as going to no issue in this appeal and thus hereby discountenanced. See Association of Senior Civil Servants of Nigeria V. JUSUN (2014) LPELR – 24185 (CA) per Georgewill JCA. See also IGP V. Ikpila (2015) LPELR – 40630 (CA) per Georgewill JCA. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

OPTIONS AVAILABLE TO A RESPONDENT WHO INTENDS IN AN APPEAL TO RAISE AND OR CANVASS ISSUES OUTSIDE THE PURVIEW OF THE GROUNDS OF APPEAL FILED BY AN APPELLANT

WHEN WILL A PUBLIC OFFICER BE AFFORDED PROTECTION UNDER THE PUBLIC OFFICERS PROTECTION LAW

There is no doubt that the provisions of the Public Officers Protection law is clearly intended to afford protection for Public Officers carrying out their statutory and or legal duties from being inundated with stale claims filed outside the three month limitation periods as prescribed in the said law. However, to take benefit of these provisions and the protection afforded by it, a Public Officer must have acted legally or lawfully and in good faith and in line with the terms of his statutory and or legal duty. Thus, conversely a Public Officer who had acted in bad faith or illegally and or whose action is clothed with malice would not be afforded the protection of the provisions of Section 2 (a) of the Public Officers Protection Law. In other words, and simply put, in law the Public Officers Protection Law is meant to protect only Public Officers who acted in good faith as it is designed to protect a Public Officer whose actions are devoid of malice and bad faith and therefore, it does not and would not apply to acts done by any Public Officer in abuse of his Office with no semblance of legal justification and or where actuated by malice or bad faith. See Unilorin V. Adeniran (2007) 6 NWLR (Pt. 498) 506, where it was emphatically pronounced and held inter alia thus: “The Public Officers Protection Act is meant to protect Public Officers who acted in good faith, it is designed to protect an Officer whose actions are devoid of malice and bad faith, and does not apply to acts done in abuse of Office with no semblance of legal justification.” In Offoboche V. Ogoja L.G. (2001) 36 WRN 1, the Supreme Court per Ayoola JSC, had put its imprimatur on this settled position of the law when it reiterated inter alia thus: “Before I consider the liability of the 2nd Respondent in regard to the publication made on the 20/7/1989 and dispose of the argument that since the 2nd Respondent was actuated by express malice, he was not entitled to the protection of the Public Officers Protection Law because he would not have been acting in good faith.” See also Nwankwere V. Adewunmi (1966) 1 ANLR 129 @ pp. 133 – 134 per Brett JSC; Lagos City Council V. Ogunbiyi (1969) 1 ANLR 297 @ p. 299. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONDITIONS MUST BE SHOWN TO EXIST FOR THE APPLICATION OF THE PUBLIC OFFICERS PROTECTION LAW

My lords, in law for the Public Officers Protection law to apply the following conditions must be shown to exist, namely: it must be established that the person against whom the action is commenced is a public officer acting in the execution of public duties within the meaning of that Law; the act done by the person in respect of whom the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See Unilorin V. Adeniran (2007) 6 NWLR (Pt. 1031) 498 @ p. 535. See also Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 @ p. 299. I dare say therefore, that the protection under Section 2(a) of the Public Protection Law is not a carte blank or a shield to be carried and used by public officers to blatantly indulge in illegalities and the perpetration of injustice whenever their supposedly official acts are challenged in Court. The protection offered is not absolute and thus there are conditions that must exist before the immunity can be enjoyed by the public officer. These conditions include that the public officer must not have acted mala-fide or in flagrant abuse of his office in the sense that the official act or conduct complained of must have semblance of legal justification or vindication. See Bala Hassan V. Babangida Aliu & Ors (2010)17 NWLR (Pt. 1223) 547 @ p. 589; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Edo State, Benin Judicial Division, Coram: N. A. Imoukhuede J, in Suit No. B/375/OS/2009: Elder J. O. Aghimien & Ors V. The Executive Governor, Edo State & Ors delivered on 29/9/2014, in which the claims of the Appellants as Claimants against the Respondents as Defendants were dismissed for being statute barred by reason of the provisions of Section 2(a) of the Public Officers Protection Law of Edo State
The Appellants were peeved with the said Judgment and had appealed against it vide their Original Notice of Appeal filed on 31/10/2014 on four grounds of appeal at pages 407 – 409 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 11/8/2015 but was deemed as properly transmitted on 16/5/2016. Subsequently, an Amended Notice of Appeal on five grounds of appeal was filed on 18/5/2016 with leave of this Court. The Appellants’ brief was filed on 21/11/2018. The 1st- 2nd Respondents’ brief was filed on 25/3/2019. The 3rd Respondent’s brief was filed on 13/12/2018.

The Appellants’ reply brief to the 1st- 2nd Respondents’ brief was filed on 28/3/2019. The Appellants’ reply brief to the 3rd Respondent’s brief was filed on 17/1/2019.

At the hearing of this appeal on 24/2/2021, A. O. Edeki Esq., learned counsel for the Appellants, appearing with Osato Akenuwa Esq., adopted the Appellants’ brief and the reply briefs as their arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below and grant the claims of the Appellants against the Respondents. On his part, P. O. Ojo Esq., Assistant Director, Ministry of Justice, Edo State, learned counsel for the 1st- 2nd Respondents adopted the 1st- 2nd Respondents’ brief as his arguments and urged the Court to dismiss the appeal and affirm the Judgment of the Court below. On their part, O. O. P. Iyamu Esq., learned counsel for the 3rd Respondent, appearing with Constance Odion Esq., adopted the 3rd Respondents’ brief as their arguments and urged the Court to dismiss the appeal and affirm the Judgment of the Court below.

By an Originating Summons filed on 31/7/2009, the Appellants as Claimants against

the Respondents as Defendants seek the determination of the following questions, namely:
A. Whether under the 1999 Constitution of the Federal Republic of Nigeria and the 2006 Electoral Act, all executive actions done or decisions taken by a declared winner of a Governorship election by Independent National Electoral Commission (INEC) and who is subsequently removed from office by the Court of Appeal as in the present case are rendered null and void by reason of such removal from office at the Court of Appeal?
B. Whether the judgment of the Court of Appeal, Benin Division, dated 11th day of November, 2008, which nullified the election of Senator (Prof.) Oserhiemen Osunbor as the Executive Governor of Edo State and upheld the election of Comrade Adams Oshiomhole as the Executive Governor of Edo State, declared null and void all the executive acts or decisions of Senator Prof. Oserhiemen Osunbor done or taken in accordance with the existing laws of Edo State prior to the said judgment of the Court of Appeal?
C. Whether by the extant provisions of the law establishing/setting up the Edo State Law Review Commission, the 1st Defendant, (i.e the

present Executive Governor of Edo State, Comrade Oshiomhole), has the power or authority to dissolve the said Statutory Commission set up and/or appointed by his predecessor in office without due regard to or compliance with the provisions of the said law?
D. Whether the existing Law establishing the Edo State Law Review Commission has any provision in it empowering the 1st Defendant (the Governor of the State) to dissolve the Commission before the completion of its assignment as set out in the extant Law?
E. Whether the 1st Defendant is empowered to relieve the Plaintiffs (the Chairman and members of the Commission) of their statutory appointments before the completion of their assignment without due compliance with the provisions of the Law establishing the Commission?

If the above questions are determined in their favor, they claim the following reliefs, to wit:
a. A declaration that the dissolution of the Edo State Law Review Commission and consequent wrongful termination of the appointments of the Chairman and members of the Commission before the completion of their assignment without due compliance with the provisions Law

establishing the Commission by the 1st Defendant, the Executive Governor of Edo State, is null, void and of no effect whatsoever.
b. An order setting aside the 1st Defendant’s letter with Ref. No. SGA.470/T/7 dated the 24th day of November, 2008 and signed by Hon. Pally Iriase, Secretary to the Edo State Government on behalf of the 1st Defendant, the letter having been issued without compliance with the existing Law establishing the Commission.
c. An order, for the avoidance of doubts, reinstating the Plaintiffs to their aforesaid positions as Chairman and members of the Edo State Law Review Commission with effect from the date of the purported letter of dissolution (until the completion of their assignment), with all their entitlements, allowances, privileges, rights, duties and obligation thereto paid to then or, in the alternative, an order directing the 1st and 2nd Defendants to comply fully with the resolution of the 3rd Defendant at one of its plenary sessions on 8th May, 2009 regarding the illegal dissolution of the Commission.
d. An order of perpetual injunction restraining the 1st and 2nd Defendants by themselves, their servants or

agents in any manner whatsoever from interfering with the Plaintiffs’ rights as Chairman and members of the Edo State Law Review Commission pending the final determination of this suit and/or the Plaintiffs’ completion of their work as set out in the Law establishing the Commission.
e. An order restraining the 1st and 2nd Defendants, their agents or servants from expending any funds on any person or agent of the 1st and 2nd Defendants purporting to act or perform the functions of the Chairman or members of the Commission except for the purpose appropriated by the 3rd Defendant for the running of the Commission and/or as approved or authorized by the Plaintiffs.
f. An order restraining the 3rd Defendant from giving effect, in any manner whatsoever, to the purported letter of dissolution of the Commission and also an order directing the 3rd Defendant i.e. the Edo State House of Assembly, in its over sight functions, to ensure that any approved budget by it for the Commission are expended for the purpose for which the Commission was originally constituted, under the Plaintiffs. See pages 1 – 6 of the Record of Appeal
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BRIEF STATEMENT OF FACTS
The Appellants as Claimants had commenced an action against the Respondents as Defendants before the Court below by means of an Originating Summons seeking the determination of some five questions and thereupon seeking some six reliefs. The facts and circumstances leading to the commencement of the action according to the Appellants as can be gleaned from their affidavit and further affidavit and annexed documentary Exhibits were that sometimes on 12/2/2002 they were appointed by Governor Lucky Igbinedion, the Executive Governor of Edo State as Chairman and Members of the Law Review Commission of Edo State with the mandate to review and produce the Revised Edition of the Laws of Edo State to enable the State have its own set of laws and do away with the continued application of the Laws of the Defunct Bendel State, a mandate the Appellants took seriously and have been working assiduously to accomplish. Upon the coming into Office by Prof O. Osunbor as the Executive Governor of Edo State, the Appellants were reappointed on 28/4/2008 in line with the provisions of the enabling law.

However, upon the judgment of the Court of Appeal delivered on 11/11/2008

removing Prof O. Osunbor as the Executive Governor of Edo State and affirming the nullification of his Election by the Governorship Election Tribunal and return of Adams Oshiomole as the duly elected Governor of Edo State and upon his assumption of Office, the 1st Respondent caused a letter dated 24/11/2008, Exhibits B – B9, to be written to the Appellants under the hands of the 2nd Respondent, then Secretary to the Government of Edo State, removing the Appellants from office on the ground that the Government of Prof O. Osunbor who reappointed them has been declared null and void by the Court of Appeal and thereby nullifying their own reappointment, which removal is contrary to the enabling law under which they were appointed and reappointed for a further five year tenure.

The Appellants took the matter to the 3rd Respondent, Edo State House of Assembly, which in its plenary session on 6/5/2009 passed a resolution calling on the 1st Respondent to reverse the removal of the Appellants done in breach of the enabling law and by a letter dated 8/5/2009 conveyed their resolution to the Chairman of the Law Review Commission of Edo State. However, the 1st

Respondent failed or refused to comply with the resolution of the 3rd Respondent calling for the reversal of their removal and reinstating the Appellants, hence the Appellants having exhausted all avenues for amicable resolution of the matter without recourse to Court had to commence an action before the Court below on 31/7/2009 against the Respondent seeking the interpretation of the relevant laws and seeking certain reliefs including the nullification of their removal from office done in breach of the enabling law and reinstating them to their office and alleging bad faith and illegality against the Respondents for their removal. See pages 1 – 20, 21 – 75, 99 – 100, 103 – 104, 109 – 110 and 111-115 of the Record of Appeal.

On the other hand, it is the case of the 1st and 2nd Respondents as Defendants before the Court below as can be gleaned from their counter affidavit as in the Record of Appeal that upon assumption of office as the Executive Governor of Edo State vested with the constitutional powers to appoint and remove public officers, including the Appellants, they were lawfully relieved of their appointment in exercise of the powers of the 1st

Respondent through a letter to that effect under the hands of the 2nd Respondent, the Secretary of the Government of Edo State on 24/11/2008. However, the Appellants did not approach the Court below until 31/7/2009 by which time their action filed outside the three months prescribed period had become statute barred by virtue of the provisions of the Public Officers Protection Laws of the Defunct Bendel State as applicable to Edo State in that the 1st and 2nd Respondents are public officers protected by the said law having acted in exercise of the powers of the 1st Respondent and without any malice or bad faith. See pages 178 – 183 of the Record of Appeal.

The 3rd Respondent did not file any process before the Court below, and this is understandably so going by its resolution at plenary on 6/5/2008 and its letter of 8/5/2009 relied upon by the Appellants stating in clearly unmistaken terms that the action of the 1st Respondent in removing the Appellants from office was in clear breach of the enabling law and should therefore, be reversed by the 1st Respondent. See pages 83 – 89 of the Record of Appeal.

At the Court below, the Appellants and the 1st

and 2nd Respondents filed and exchanged affidavit, counter affidavit and further affidavit as well as several documents annexed as Exhibits on the Appellants’ Originating Summons. They also filed written addresses. The 1st and 2nd Respondents at different times filed three applications challenging the competence of the Appellants’ Suit as well as the Jurisdiction of the Court below to entertain the Appellants’ Suit. However, the Motion on Notice filed on 12/5/2010 was struck out on 12/2/2012 by the Court below for lack of diligent prosecution. See pages 330 – 331 of the Record of Appeal.

On 8/5/2014, the matter proceeded to hearing of both the Appellants’ Originating Summons as well as the pending two applications filed by the 1st – 2nd Respondents challenging the Jurisdiction of the Court below on basically the same ground alleging that the claims of the Appellants are within the exclusive Jurisdiction of the National Industrial Court outside the jurisdiction of the Court below. On 29/9/2014, the Court below delivered its judgment dismissing the Appellants’ Suit and holding that the removal of the Appellants by the 1st

Respondent was valid and legal and that the Appellants’ Suit was statute barred having not been commenced within the three months as prescribed by Section 2(a) of the Public Officers Protection Law of the Defunct Bendel State as applicable to Edo State, hence the appeal. See pages 394 – 406 and 407 – 409 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, five issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether by the decision of the Court below in dismissing the Appellants’ Originating Summons on the ground that it is statute barred, the Court below has not by necessary implication upheld the validity of the issuance of Exhibits B5-B9 and the dissolution of the Commission, without considering the interpretation of the Constitutional and legal issues raised in the Originating Summons vis-a vis the binding effect of the Supreme Court cases of Rt. Hon. Michael Balonwu & Ors V. Governor of Anambra State (2009) 177 LRCN 1 and Marwa & Ors V. Nyako (2012) 204 LRCN 1 cited before it? (Distilled from Ground 1)
2. Whether the 1st Respondent was in law

protected by Section 2(a) of the Public Officers Protection Act/Law in the issuance of the letters of dissolution, Exhibits B5 -B9, having regards to the unchallenged affidavit evidence before the Court below in support of the proviso to Section 2(a) of the said Act/Law? (Distilled from Ground 2)
3. Whether the issuance of Exhibits B5 -B9 by the 1st Respondent in dissolving the Law Review Commission is within his constitutional powers and/or all other enabling laws as decided by the Court below? (Distilled from Ground 3)
4. Whether the Court below was right in holding that the Appellants’ action instituted by way of Originating Summons before it for the interpretation of the 1999 Constitution, the Electoral Acts and/or the enabling law of the Commission, is statute barred? (Distilled from Ground 4)
5. Whether the decision of the Court below, predicated on a non-existent Respondent’s preliminary objection to dismiss the Appellants’ Originating Summons, on the ground that the action of the 1st Respondent is statute barred; is not perverse, thereby occasioning serious miscarriage of Justice in this case? (Distilled from Ground 5)

In the 1st- 2nd Respondents’ brief, a sole issue was distilled as arising for determination in this appeal, namely:
Whether or not the Court below was right when it declined jurisdiction of the Appellant’s case? (Distilled from Ground 1)

In the 3rd Respondent’s brief, a sole issue was also distilled as arising for determination in this appeal, namely:
Whether the Court below had the jurisdiction to entertain the questions posed in the originating summons in this case? (Distilled from Ground 1)

I have taken time to consider the claims, the affidavits, the counter affidavit and further affidavits as well as the documentary Exhibits relied upon by the parties in both 1st – 2nd Respondents’ two pending Motions on Notice as well as in the Appellants’ Suit. I have also considered the submissions of counsel in their respective briefs in the light of the findings and decision in the judgment of the Court below. Upon an anxious consideration of all of these, I am of the view that the proper issues arising for determination in this appeal are the five issues for determination as distilled in the Appellants’ brief, a

consideration of which in my view would invariably involve a consideration of the sole issue as distilled in the 1st- 2nd Respondents’ brief as well as the sole issue as distilled in the 3rd Respondent’s brief. I hereby adopt and set down the Appellants’ five issues as the issues for determination. However, I shall consider these issues in the following order, namely: issue five on its own, issues two and four together with 1st – 2nd Respondents’ sole issue and 3rd Respondent’s sole and resolve all these issues in one fell swoop. I shall then consider issues one and three together.

ISSUE FIVE
Whether the decision of the Court below, predicated on a non – existent Respondent’s preliminary objection to dismiss the Appellants’ Originating Summons, on the ground that the action of the 1st Respondent is statute barred; is not perverse, thereby occasioning serious miscarriage of Justice in this case?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue five, learned counsel for the Appellants had submitted that the Court below erred in law when it ruled on and upheld a Motion of Notice of preliminary objection filed on

12/5/2010 by the 1st and 2nd Respondents challenging the competence of the Appellants’ Originating Summons on the ground that it was caught by the provisions of the Public Officers Protection Law and therefore, statute barred when the said Motion on Notice had been struck out by the Court below on 10/2/2012 and was thus no longer pending when the Suit was heard on 8/5/2014 by the Court below and contended that in law a decision reached on a non-existent Motion on Notice, which had already been struck out by the Court below, is perverse and urged the Court to hold that in the absence of any other pending and live Motion on Notice or Preliminary Objection challenging the Appellants’ Suit on grounds of it being statute barred by reason of the Public Officers Protection Law, the decision by the Court below dismissing the Appellants’ Suit on a non-existent preliminary objection was most perverse as one reached without competence and thus liable to be set aside and to allow the appeal and set aside the null and perverse judgment of the Court below. Counsel relied on Ekwomchi V. Ukwu (2002) 1 NWLR 590.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the 3rd Respondent had submitted though the 1st and 2nd Respondents’ Motion on Notice filed on 12/5/2010, challenging the jurisdiction of the Court below on the ground that the Appellants’ Suit was statue barred, was struck out by the Court below on 10/2/2012, there was another Motion on Notice filed on 25/3/2014 challenging the competence of the Appellants’ Suit on the ground that it is the National Industrial Court that has the exclusive jurisdiction over the claims of the Appellants and urged the Court to consider the said Motion On Notice filed on 25/3/2014 and resolve same.

RESOLUTION OF ISSUE FIVE
My lords, it does appear that the 1st and 2nd Respondents did not give this issue any thought and thus did not make any submissions on issue five. In law, the failure of the 1st and 2nd Respondent to make any counter submissions on issue five would simply amount to a concession by them that indeed when the Court below proceeded to deliver its judgment dismissing the Appellants’ Suit for being statute barred by virtue of Section 2(a) of the Public Officers Protection Law, it was

really on a voyage of discovery of its own and thereby did so without jurisdiction when it arrived at its decision dismissing the Appellants’ Suit. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC.,(as he then was now CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA; Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, in law failure by one party to counter argument of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80;

Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

On 12/5/2010, the 1st and 2nd Respondents filed a Motion on Notice before the Court below challenging the competence of the Appellants’ Suit on the ground that it was statute barred by virtue of Section 2(a) of the Public Officers Protection Law of the Defunct Bendel State as applicable to Edo State. However, on 10/2/2012, on the application of learned counsel for the Appellants, the said Motion on Notice was struck out by the Court below for lack of diligent prosecution. See pages 126 – 129, 147 – 153, 170 – 175 and 330 – 331 of the Record of Appeal.. – 129, 147 – 153 and 170 – 17 of the Record of Appeal.

On 4/7/2012, the 1st and 2nd Respondents filed another Motion on Notice seeking to dismiss the Appellants’ Suit on the ground that their claims fall within the exclusive jurisdiction of the National Industrial Court. On 25.3.2014, the 1st and 2nd Respondents filed yet another Motion on Notice seeking to strike out the

Appellants’ Suit on the ground that by Section 254 (c) of the Constitution of Nigeria 1999 (as amended) their claims fall within the exclusive jurisdiction of the National Industrial Court to the exclusion of the Court below. See pages 256 – 259 and 293 – 296 of the Record of Appeal.

Thus, as at 8/5/2014 when the Court below heard the Appellants’ Suit the only live pending processes before it were the Appellants’ Originating Summons, the 1st and 2nd Respondents’ Motions on Notice filed on 4/7/2012 and 25/3/2014 respectively, both of which were based on the issue of the claims of the Appellants being within the exclusive jurisdiction of the National Industrial Court and outside the jurisdiction of the Court below.

Yet, in its judgment the Court below proceeded to consider the application by the 1st and 2nd Respondents challenging the Appellants’ Suit on grounds of it being statute barred already and struck out, notwithstanding the absence of any such pending application, upheld the non – existent application and dismissed the Appellants’ Suit for being statute barred. What a travesty of justice. See page 397 of the

Record of Appeal where the Court set down the issues relating to the exclusive jurisdiction of the National Industrial Court in employment matter, which it eventually did even consider, and the issue of the Public Officers Protection Law, which it solely considered as a preliminary objection by the 1st and 2nd Respondents challenging the competence of the Appellants’ Suit and on which basis it dismissed the Appellants’ Suit. Happily, in law a decision of a Court reached on a non – existent application is one reached in absence of jurisdiction and therefore, a nullity and thus, liable to be set aside. I hereby without much ado, so set it aside.

However, it is little wonder to me that the Court below considered and resolved a non – existent application going by the several wrong dates it bandied about in its judgment as to the dates the cause of action of the Appellants arose without reference to the facts as placed before it by the parties. So sad. See page 402 of the Record of Appeal where the cause of action was stated to have arisen on 24/12 and page 405 when the same cause of action was said to have arisen on 12/3/02. In the

circumstances therefore, issue five is hereby resolved in favor of the Appellants against the Respondents.

ISSUES TWO AND FOUR TAKEN TOGETHER
Whether the 1st Respondent was in law protected by Section 2(a) of the Public Officers Protection Act/Law in the issuance of the letters of dissolution, Exhibits B5 – B9, having regards to the unchallenged affidavit evidence before the Court below in support of the proviso to Section 2(a) of the said Act/Law AND whether the Court below was right in holding that the Appellants’ action instituted by way of Originating Summons before it for the interpretation of the 1999 Constitution, the Electoral Acts and/or the enabling law of the Commission, is statute barred?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue two, learned counsel for the Appellants had submitted that the purported removal of the Appellants from office vide Exhibits B5-B9 by the 1st Respondent acting through the 2nd Respondent on the ground that all actions and appointments by Prof O. Osunbor as Governor of Edo State had been nullified by the nullification of his election as Governor of Edo State by the Court of Appeal in its judgment

declaring Adams Oshiomole as the duly elected Governor of Edo State from the 2007 General Elections was without any semblance of legal justification and contended that there was nowhere the Court of Appeal in its judgment delivered on 11/11/2008, nullified the Government actions or appointments made by Prof O. Osunbor as Governor of Edo State before his removal from Office and urged the Court to hold that the 1st and 2nd Respondents having acted without any semblance of legal justification are not in law protected by the provisions of the Public Officers Protection Law and to allow the appeal and set aside the perverse judgment of the Court below and to determine the Respondent’s Suit on the merit. Counsel referred to Section 2(a) of the Public Officers Protection Law of defunct Bendel State as applicable to Edo State and relied on Marwa V. Nyako (2012) 204 LRCN 1 @ p. 56; Unilorin V. Adeniran (2007) 6 NWLR (Pt. 1031) 498 @ p. 535; Lagos City Council V. Ogunbiyi(1969) 1 All NLR 297 @ p. 299.

It was also submitted that from the state of facts and circumstances of this case, it was clear that act of the 1st Respondent in removing the Appellants from

Office was grossly unconstitutionally and illegal in that it was based on the clear misconception that the Government of Prof. Oserhiemen Osunbor had been declared null and void by the Court of Appeal and contended that such an act founded on such grave misconception of the law which was neither true nor correct is one done in bad faith and without any semblance of legal justification and urged the Court to hold that the replacement with immediate effect of the Appellants with his personal assistant as the sole Administrator of the Law Review Commission amounted to gross abuse of office by the 1st Respondent for which reason also the Public Officers Protection law would not apply and to allow the appeal, set aside the perverse judgment of the Court below and to determine the Appellants’ Suit on the merit. Counsel referred to Section 2(a) of the Public Officers Protection Law; Section 184 (a) (i) and 3(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 138 and 149 of the Electoral Acts 2002 and 2006 respectively and relied on Rt . Hon. Michael Balonwu & Ors V. Governor Of Anambra State (2009) 177 LRCN 1 @ p. 4;

Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20.

It was further submitted that the decision of the Court below dismissing the Appellants’ Suit for being statute barred when on the law and facts it was not statute barred was clearly perverse and has thereby occasioned serious miscarriage of justice to the Appellants and contended that in law this Court is vested with the power to consider and determine the Appellants’ Suit and find for the Appellants against the 1st and 2nd Respondents and urged the Court to so do and allow the appeal and set aside the perverse judgment of the Court below and to enter judgment on the claims of the Appellants against the 1st and 2nd Respondents as the justice of the case demands. Counsel referred to Section 15 of the Court of Appeal Act 2004 and relied on Osuji V. Ekeocha (2008) 177 LRCN 8; Otukpo V. John (2012) 212 LRCN 141 @ p.151; Opuiyo V. Omoniwari (2007) 6 SCNJ 131; Uzuda V. Ebigah (2009) 177 LRCN 52 @ p. 71; F & F Farm (Nig.) Ltd. v. NNPC (2009) 177 LRCN 107; Owie V. Ighiwi (2005) 5 NWLR (Pt. 917) 184.

It was also further submitted that it was grossly wrong of the 1st Respondent to abrogate and nullify

appointments made by Prof O. Osunbor that enjoyed statutory flavor and contended that in law the relationship between the Appellants and the 1st Respondents was not one of master and servant that he could hire and fire at will against the provisions of the enabling law and urged the Court to hold that by the nature of the claims of the Appellants, in law an action seeking the interpretation and application of a law, time does not run from the time the law was made but from the time the law is sought to be applied and to allow the appeal and set aside the judgment of the Court below and determine the Appellants’ Suit on the merit and to grant the claims of the Appellants against the 1st and 2nd Respondents. Counsel relied on Plateau Const. Ltd V. Aware (2014) 6 NWLR 519; Ikine v. Chief O. Edjerode & Ors (2002) FWLR (Pt. 92) 1778.

On issue four, learned counsel for the Appellants had submitted that unless and until the Court below had first considered the interpretation of the legal issues posed in the Originating Summons, it cannot be in a position to decide whether or not the Public Officers Protection Law provides any legal justification for the

action of the 1st Respondent and contended that the Court below cannot when called upon to interpret the position of the law on the acts of the 1st Respondent fail to do so and urged the Court to hold that the Court below merely truncated the interpretation of the legal questions challenging the illegal acts of the 1st Respondent as posed in the Originating Summons which were within the competence of the Court below and by necessary implication gave approval to the validity of the issuance of Exhibits B5-B9 and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); “Words And Phrases” (West Publishing Company) Vol. 23a; The Century Dictionary; Black’s Law Dictionary 9th Edition; and relied on Oni V. Fayemi (2013) 224 LRCN (Pt.2) 89; Anyaoha V. Obioha (2014) 6 NWLR 445; Plateau Const. Ltd V Aware (2014) 6 NWLR (Pt.1404) 519; Attorney General of Bendel State V. Attorney General of the Federation (1981) 10 SC 1.

It was also submitted that the Court below erred when it held that the Appellants’ Suit for the interpretation of

the Constitution of Nigeria 1999 (as amended), the Electoral Act and the Edo State Revised Edition Law 2001 was statute barred without considering the nature of the case and/or making any efforts whatsoever to interpret the questions posed in the Originating Summons and contended that in law the Court had the unhindered jurisdiction to so do and urged the Court to hold that the Court below by its failure to rise up to the occasion merely deprived itself of jurisdiction to interpret appropriate provisions of the Constitution of Nigeria 1999 (as amended) and the other enabling laws and thereby occasioned a miscarriage of justice to the Appellants and to set aside the judgment of the Court below. Counsel relied on Re F &F Farms Nig. Ltd (2009) 177 LRCN 107.

1ST – 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the 1st and 2nd Respondents had submitted that the Court below lacked the Jurisdiction to entertain the Appellants’ Suit in that the said Suit was commenced on 31/7/2009 to complain about the removal of the Appellants which took place on 24/11/2008 and contended that in law such an action instituted

against the 1st and 2nd Respondent, who are public officers, was statute barred in that time begins to run from the date the cause of action arose which was on 24/11/2008 and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below dismissing the Appellants’ Suit for being statute barred. Counsel referred to Section 2(a) of the Public Officers Protection Law CAP 137 Volume V, Laws of the Defunct Bendel State of Nigeria 1976 now applicable to Edo State; Sections 176 and 211 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Owie V. Ighiwi (2005) 5 NWLR (Pt. 917) 184 @ pp. 195 & 224; Okere V. Amadi (2005) 14 NWLR (Pt. 945) 545 @ p. 549; Independent National Electoral Commission V. Ogbadibo Local Government and Others (2016) 3 NWLR (Pt. 1498) 167 @ pp. 174 & 191-192.

It was also submitted that at the time the Appellants commenced their action on 31/7/2009 to enforce their cause of action which arose on 24/11/2008 against the 1st and 2nd Respondents, who are public officers by virtue of the provisions of the Constitution of Nigeria 1999 (as amended),

the Appellants had lost their right to be heard having failed, refused and/or neglected to file their action timeously within the three months period as prescribed by law and contended that in law the consequences of such delay is to render the Suit statute bared and thus incapable of any enforcement in a Court of law and urged the Court to hold that the Court below was right when it declined jurisdiction to hear and determine the Appellants’ suit having been caught up by the limitation law and therefore statute barred and to dismiss the appeal and affirm the judgment of the Court below dismissing the Appellants’ Suit. Counsel relied on James V. INEC (2015) 3MJSC (Pt. II) I @ p. 7; Sun Insurance Nigeria Plc V. Umez Engineering Construction Company Limited (2015) 6 MJSC (PT II) 1 @ pp. 12 – 13; Dr Taiwo Oloruntoba – Oju & 5 Ors V. Professor A. Dopamu (2008) 4 MJSC 1; Nika Fishing Co. Ltd V. Lavina Corporation (2008) 11 MJSC 43; Kasikwu Farms Ltd V. Attorney General Of Bendel State (1986) 1 NWLR (PT 19) 69.

It was further submitted that in law once a cause of action accrues, the time spent on negotiation between the parties is of no

moment in determining when time begins to run for the purposes of the limitation law in that upon receipt of Exhibits B5 – B9 by the Appellants, the time they spent petitioning the 3rd Respondent, the Edo State House of Assembly, over the action of the 1st Respondent as well as the subsequent resolution of the 3rd Respondent was of no moment and do not affect the limitation law and urged the Court to hold the time begin to run from 24/11/2008 and that the 1st Respondent, who in law is not bound by the resolution of the 3rd Respondent, had nothing to do with the negotiation or discussions with the Appellants whose cause of action had become statute barred as at when it was filed on 31/7/2009 and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on John Eboigbe V. The Nigeria National Petroleum Corporation (1994) 5 NWLR (Pt. 347) 649.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the 3rd Respondent had submitted that the Court below had no jurisdiction to entertained the claims in the Appellants’ Suit, being labor and employment related, which are within the

exclusive jurisdiction of the National Industrial Court and contended that in the circumstances the Appellants’ Suit being a labour matter or issue, fall squarely within the jurisdiction of the National Industrial Court outside the jurisdiction of the Court below and urged the Court to hold that whether or not the Public Officers Protection law was applicable and whether or not Exhibits B5 – B9 were properly or improperly issued by the 1st Respondent and even whether or not the dissolution of the Law Review Commission was proper or not are all issues being incidental to the main issue based on labour and employment which is within exclusive jurisdiction of the National Industrial Court. Counsel referred to Section 254(c) and (k) of the Constitution of Nigeria 1999 (as amended).

It was also submitted that the Claims of the Appellants were statute barred having been commenced outside the three months period as prescribed by law and contended that in law the 1st Respondent has the power of appointment and removal of the Appellants at his pleasure and having exercised his constitutional powers to remove the Appellants there was nothing mala – fide in the

lawful exercise of the powers of the 1st Respondent over the employment of the Appellants and urged the Court to hold that the 1st Respondent was entitled to and was protected by the Public Officers Protection Law and to dismiss the appeal and affirm the dismissal of the Appellants’ Suit, which was statute barred, by the Court below. Counsel referred to Section 208 (1) of the Constitution of Nigeria 1999 (as amended); Section 2(a) of the Public Officers Protection Law, and relied on Unilorin V. Adeniran (2007) 6 NWLR (Pt.1031) 498 @ p. 535.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply to the 1st and 2nd Respondents’ brief, learned counsel for the Appellants had reiterated and reinforced his earlier submissions on the inapplicability of Section 2(a) of the Public Officers Protection Law Cap 137 Vol. V of the Laws of the defunct Bendel State as applicable to Edo State and contended that by reason of the action of the 1st Respondent against the Appellants without any semblance of legal justification, the Appellants’ Suit was not statute barred and urged the Court to so hold and to allow the appeal, set aside the judgment

of the Court below and determine the claims of the Appellants on the merit. Counsel relied on Unilorin V. Adeniran (2007) 6 NWLR (Pt.1031) 498 @ p. 535.

RESOLUTION OF ISSUES TWO AND FOUR
My lords, issues two and four, shorn of all the over dose of legal submissions and plethora of decided cases delving even into the allegation of facts in the substantive Suit, which is yet to come up for consideration, under the issue of the applicability or otherwise of the Public Officers Protection Law, is simply whether or not the Appellants’ Originating Summons was statute barred by reason of the provision of Section 2(a) of the Public Officers Protection Law of Bendel State of Nigeria 1976 as applicable to Edo State and I intend to keep my consideration of these issues within that narrow confine devoid of any straying into the merit or otherwise of the claims of the Appellants against the Respondents at this stage in this judgment.

Now, I have already held that the issue of the Public Officers Protection Law was raised in the Motion on Notice filed by the 1st and 2nd Respondents on 12/5/2010 but which Motion on Notice was struck out by the Court

below on 10/2/2012 and that ought to have ended the issue of Public Officers Protection Law. However, it does appear that in their counter affidavit to the Appellants’ Originating Summons, the 1st and 2nd Respondents duly raised the issue of the Public Officers Protection Law as affording protection to them against the claims of the Appellants on the ground that the Appellants’ Suit was filed, as they alleged, outside the three months as prescribed by the said law and thus statute barred. See paragraphs 4 (xxxiv – xxxvi) of the 1st and 2nd Respondents’ counter affidavit at pages 178- 183 of the Record of Appeal.

In the 3rd Respondent’s brief, submissions were made in relation to the jurisdiction of the National Industrial Court pursuant to Section 254 (c) of the Constitution of Nigeria 1999 (as amended). However, in law, a Respondent who intends in an appeal to raise and or canvass issues outside the purview of the grounds of appeal filed by an Appellant has open to him one of two options, namely; to Cross appeal or to file a Respondent’s Notice. Thus, in the absence of either a Cross Appeal and or a Respondent’s

Notice, a Respondent is not at liberty to either formulate and or canvass issues outside the purview of and thus not arising from any of the valid grounds of appeal filed by an Appellant. I therefore, consider all the submissions of learned counsel for the 3rd Respondents on the exclusive jurisdiction of the National Industrial Court over the claims of the Appellants, and not arising from any of the five grounds of appeal in the Appellants’ Amended Notice of Appeal, as going to no issue in this appeal and thus hereby discountenanced. See Association of Senior Civil Servants of Nigeria V. JUSUN (2014) LPELR – 24185 (CA) per Georgewill JCA. See also IGP V. Ikpila (2015) LPELR – 40630 (CA) per Georgewill JCA.

Now, on the facts placed by the Appellants and the 1st and 2nd Respondents in the processes filed by them before the Court below as in the Record of Appeal, the Appellants were first appointed as Chairman and Members of the Edo State Law Review Commission on 12/2/2002 by Governor Lucky Igbinedion and were subsequently reappointed on 28/4/2008 by Governor Prof O. Osunbor. However, on 11/11/2008, the Court of Appeal in its judgment in CA/B/EPT/93/08

as in Exhibit C, at pages 21 – 75 of the Record of Appeal, nullified the election of Prof O. Osunbor as Governor of Edo State and in his stead the 1st Respondent, Adams Oshiomole, was declared and returned as the duly elected Governor of Edo State from the 2007 General Elections in Edo State. On 24/11/2008, the 1st Respondent caused to be issued to the Appellants through the 2nd Respondent, Secretary to the Government of Edo State, Exhibits B5 – B9 dissolving the Edo State Law Review Commission and thereby removing the Appellants from Office.

The Appellants protested their removal as illegal and the 3rd Respondent by its resolution of 6/5/2009 resolved that their removal by the 1st Respondent was in breach of the enabling law and they should therefore, be reinstated but they were not so reinstated and they approached the Court below by their Originating Summons filed on 31/7/2009. The 1st and 2nd Respondents deposed in their counter affidavit at paragraphs 4(xxxiv – xxxvi) at pages 178 – 179 of the Record of Appeal, that they being public officers the action ought to have been commenced against them within three months from the 24/11/2008 when Exhibits

B5 – B9 were issued to the Appellants and that by the time the Appellants’ Suit was filed on 31/7/2009 it has been caught up by the provision of Section 2 (a) of the Public Officers Protection Law and was therefore, statute barred and rendered incompetent. See pages 1 – 21, 178 – 183 and 691 – 694 of the Record of Appeal.

It was on the strength of the above state of the processes filed by the parties and the affidavit, counter affidavit and further affidavit of the parties that the matter proceed to hearing on 8/5/2014 when the parties duly adopted their respective written addresses and on 29/9/2014 the Court below delivered its Judgment, dismissing the Appellants’ Suit for being statute barred, stating and holding inter alia thus:
“…Counsel to the Claimants had contended that their removal was done in bad faith, I have not found evidence of bad faith in their removal by the Governor and I so hold… I find no evidence before me that 1st and 2nd Defendants entered into any form of negotiations and I so hold. The letter of dissolution dated 3/11/2008 was final in nature… I therefore hold that the cause of action arose and

accrued to the Claimants when they received their letter dated the 12/3/02 on which they predicated their claims against the Respondents. From that date as far as the Respondents were concerned the Claimants was no longer in their Employment. This Court has to then determine if this Suit is statute barred since time begins to run from the date the cause of action arose. This Suit was signed by the Registrar on the 31/7/2009… clearly falls outside the three months limitation period and I so hold. This suit is therefore statute barred and is dismissed for lack of jurisdiction.” See pages 394 – 406 of the Record of Appeal.

Now, by the Exhibits B5 – B9, through which the removal of the Appellants by the 1st Respondent was conveyed to them by the 2nd Respondent, it was stated as follows:
“I write to inform you that following the unanimous decision of the Court of Appeal which declared the Government of Senator (Prof.) Oserheimen Osunbor (i.e the Government that appointed you) null and void, the people’s Governor of Edo State, Comrade Aliyu Oshiomhole has approved the dissolution of your Commission. Consequently, you are hereby directed to

immediately hand over all Government property in your possession to the Solicitor General/Permanent Secretary, Ministry of Justice, please,” See page 111 of the Record of Appeal

My lords, the parties are ad idem, and there is no dispute whatsoever about it, that the 1st and 2nd Respondents are Public Officers ordinarily entitled to the protection of the provisions of the Public Officers Protection Law. Thus, the only crucial question under issues two and four is whether on the facts deposed to by the Appellants as disclosing their cause of action and when their Suit was commenced against the 1st and 2nd Respondent, who are undoubtedly Public Officers, are the 1st and 2nd Respondents entitled to the protection afforded by Section 2 (a) of the Public Officers Protection Law as held by the Court below?

Now, by Section 2(a) of the Public Officers Protection Law, it is provided thus:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act,

Law, duty or authority, the following provisions shall have effect-
(a) Limitation of time – the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof;
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced after the discharge of such person from prison.”
The Appellants’ appointment was made pursuant to the provisions of the Revised Edition Laws of Edo State of Nigeria 2001 and therefore, enjoys a statutory flavor. The following Sections of the enabling law are pertinent to the just determination of these issues and are hereby reproduced thus:
Section 4 (2): The Chairman, Members and Secretary of the Commission shall be appointed by the Governor on the recommendation of the Attorney – General
5(3): If for any reason, any member of the Commission is unable to act or carry out the functions of his office, the

Governor may appoint in his stead, some other person provided at all times regard is had to the provisions of Section 4(2) & (3) of this law.
5(4): The Governor may remove a member of the Commission for his inability to discharge the functions of his office, whether arising from infirmity of mind or body or any other cause or for misconduct.
7(1) A person appointed as Chairman or Member shall hold office for five years and shall be eligible for re – appointment for a further term of five years.
There is no doubt that the provisions of the Public Officers Protection law is clearly intended to afford protection for Public Officers carrying out their statutory and or legal duties from being inundated with stale claims filed outside the three month limitation periods as prescribed in the said law. However, to take benefit of these provisions and the protection afforded by it, a Public Officer must have acted legally or lawfully and in good faith and in line with the terms of his statutory and or legal duty. Thus, conversely a Public Officer who had acted in bad faith or illegally and or whose action is clothed with malice would not be afforded

the protection of the provisions of Section 2 (a) of the Public Officers Protection Law. In other words, and simply put, in law the Public Officers Protection Law is meant to protect only Public Officers who acted in good faith as it is designed to protect a Public Officer whose actions are devoid of malice and bad faith and therefore, it does not and would not apply to acts done by any Public Officer in abuse of his Office with no semblance of legal justification and or where actuated by malice or bad faith. See Unilorin V. Adeniran (2007) 6 NWLR (Pt. 498) 506, where it was emphatically pronounced and held inter alia thus:
“The Public Officers Protection Act is meant to protect Public Officers who acted in good faith, it is designed to protect an Officer whose actions are devoid of malice and bad faith, and does not apply to acts done in abuse of Office with no semblance of legal justification.”
In Offoboche V. Ogoja L.G. (2001) 36 WRN 1, the Supreme Court per Ayoola JSC, had put its imprimatur on this settled position of the law when it reiterated inter alia thus:
“Before I consider the liability of the 2nd Respondent in

regard to the publication made on the 20/7/1989 and dispose of the argument that since the 2nd Respondent was actuated by express malice, he was not entitled to the protection of the Public Officers Protection Law because he would not have been acting in good faith.”
See also Nwankwere V. Adewunmi (1966) 1 ANLR 129 @ pp. 133 – 134 per Brett JSC; Lagos City Council V. Ogunbiyi (1969) 1 ANLR 297 @ p. 299.

My lords, the question of existence or non – existence of any semblance of legal justification, at the stage of considering the protection afforded by the Public Officers Protection Law, as a preliminary issue of competence, can only be determined at that stage on the standard of prima facie as anything otherwise, including a finding that there was or there was no semblance of legal justification, would be tantamount to pronouncing on the substantive issues in the Suit which has not yet come up for consideration and resolution at this preliminary stage of determining whether or not the Appellants’ Suit was competent. The line appears so thin but nevertheless must be drawn.

Going through the judgment of the Court below, it could be

seen that it was oscillating between considering the issue of statute barred as a preliminary issue and at the same time making pronouncements and findings on the issue of the validity or otherwise of the issuance of Exhibits B5 – B9 by the 1st and 2nd Respondents, which is indeed the crux of the Appellants’ Suit. It is for this lack of compartmentalizing these issues that the Court below which had in one breadth held that the claim of the Appellants was statute barred, which in law means it was incompetent and therefore, cannot be determined on the merit, yet in another breadth the Court below held that the 1st Respondent had the constitutional powers to remove the Appellants and therefore, Exhibits B5 – B9 were valid. Honestly, in that scenario it is difficult to say that the Court below found the Appellants’ Suit incompetent when it had also decided the real crux of the Appellants’ Claim against the Respondents and finding it as lacking in merit. Happily, both the preliminary issue of limitation of time and the substantive issue of the validity of Exhibits B5 – B9 are captured and covered by the issues for determination

in this appeal. I shall therefore, consider each of these two issues on their own merit and resolve them in this judgment

The term ‘any resemblance of Legal justification’, in its prima facie sense, does not mean proof of lack or presence of legal justification but rather whether with regard to the extant law the action complained of shows prima facie compliance with the requirements of the law. If it does even on a prima facie basis then of course such a ground of complaint would not stand but if does not, then a prima facie finding of its non- existence can be made in the preliminary issue of limitation of time.
Now, by Section 7(1) of the Revised Edition Law of Edo State 2001, the tenure of the Appellants is fixed at five year and a further term of five years. In the judgment of the Court of Appeal delivered on 11/11/2008, which I have taken the time to read through, there is nowhere the actions and appointment made by Prof O. Osunbor as Governor of Edo State before 11/11/2008 were nullified by the Court of Appeal. In that circumstances, does the letter caused to be written to each of the Appellants by the 1st Respondent through the 2nd Respondent

basing the removal of the Appellant on the ground of nullification of the Government of Prof. O. Osunbor by the Court of Appeal has any semblance of legal justification to support a plea of the Public Officers Protection Law? In other words, was the removal of the Appellants vide Exhibits B – B9, in view of the reasons proffered therein in the light of the provisions of Sections 3, 4, 5 and 7 of the Revised Edition Laws of Edo State 2001, with any semblance of legal justification? I think not. See Marwa V. Nyako (2012) 204 LRCN 1 @ p. 56, where the Supreme Court per Onnoghen JSC (as he then was but later CJN) had held inter alia thus:
“The fact that there was an election in 2007 as a result of which the 1st Respondent (Governors) took their oaths of allegiance are facts which cannot be wished away just as the acts they performed while occupying the seat.”
I think Exhibits B5 – B9 apart from exhibiting crass ignorance and or misconception of the purport in law of nullification of the election of a Governor earlier declared elected by INEC and sworn into Office but subsequently removed from Office by the Tribunal or Court, which nullification does not

nullify his acts and appointments prior to the nullification and also more gravely the aggregating of all public officers into political appointees and the powers of the 1st Respondent to remove his political appointees at his own pleasure with or without any reason as distinct from public officers whose appointment enjoy statutory flavor and are subject to removal in line with the enabling law. The Appellants are, in my finding, not political appointees in the mold of those mentioned in Section 208(1) of the Constitution of Nigeria 1999 (as amended) as erroneously held by the Court below. They are public officers whose removal is subject to compliance with the provisions of the Revised Edition Laws of Edo State of Nigeria 2001 and this made all the difference. I find therefore, as fact that Exhibits B5 – B9, not in any semblance of compliance with Sections 5(3) 5(4) and 7(1) of the Revised Edition Law of Edo State of Nigeria 2001, has no semblance of any legal justification to avail the 1st and 2nd Respondents of the protection afforded by the Public Officers Protection Law of the Defunct Bendel State 1976 as applicable to Edo State. In other words, and for

the avoidance of doubt, I hold firmly that the 1st and 2nd Respondents, on the facts placed before the Court below, as in the Record of Appeal, were not entitled to the protection afforded by the Public Officers Protection Law, which I find was inapplicable, by reason of the fact that the act of the 1st and 2nd Respondents against the Appellants vide Exhibits B5 – B9, lacks any semblance of legal justification as required of them by law for them to enjoy the protection afforded by the Public Officers Protection Law. See Section 2(a) of the Public Officers Protection Law of defunct Bendel State as applicable to Edo State.
My lords, in law for the Public Officers Protection law to apply the following conditions must be shown to exist, namely: it must be established that the person against whom the action is commenced is a public officer acting in the execution of public duties within the meaning of that Law; the act done by the person in respect of whom the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.

See Unilorin V. Adeniran (2007) 6 NWLR (Pt. 1031) 498 @ p. 535. See also Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 @ p. 299.
I dare say therefore, that the protection under Section 2(a) of the Public Protection Law is not a carte blank or a shield to be carried and used by public officers to blatantly indulge in illegalities and the perpetration of injustice whenever their supposedly official acts are challenged in Court. The protection offered is not absolute and thus there are conditions that must exist before the immunity can be enjoyed by the public officer. These conditions include that the public officer must not have acted mala-fide or in flagrant abuse of his office in the sense that the official act or conduct complained of must have semblance of legal justification or vindication. See Bala Hassan V. Babangida Aliu & Ors (2010)17 NWLR (Pt. 1223) 547 @ p. 589; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20.
Thus, I cannot but agree completely with the apt and unassailable submission of learned counsel for the Appellants, with represents the correct and undiluted position of the law, that the Public Officers Protection Law

is neither envisaged nor meant to protect any constitutional wrong of a Public Officer such as the 1st Respondent who though a public officer had in clear misconception of the judgment of the Court of Appeal delivered on 11/11/2008 removing Prof O. Osunbor from Office as Governor of Edo State and returning him as the duly elected Governor of Edo State had proceeded to annul even tenured appointments backed with statutory flavor, such as the appointment of the Appellants despite the clear position of the law that in Nigeria the actions and appointments made by a person who served as a Governor after he was declared elected by INEC and sworn into office, but who was later removed from office by the Court of Appeal, the final Court at the time of this case, are saved and thus remained valid in law. See Section 184 (a) (i) and 3(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections 138 and 149 of the Electoral Acts 2002 and 2006. See also Rt. Hon. Michael Balonwu & Ors V. Governor Of Anambra State (2009) 177 LRCN 1 @ p. 4; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20.
In the light of all I have stated and found as

above, I hold firmly that on the state of the affidavit and counter affidavit evidence of the parties in the Appellants’ Originating Summons, at least on prima facie basis at this stage, the Appellants showed that the action of the 1st and 2nd Respondents against them vide Exhibits B5 – B9, in total disregard of the provisions of the Revised Edition Laws of Edo State of Nigeria 2001, was without any semblance of legal justification and therefore, robs the 1st and 2nd Respondents of the protection that would have otherwise been afforded to them by the Public Officers Protection Law. In PHCN V. Ayodele & Anor (2018) LPELR – 44537 (CA), this Court per Georgewill JCA, had on this issue of applicability or otherwise of the provisions of the Public Officers Protection Act reiterated inter alia thus:
“Now, in law the protection afforded by the Public Officers (Protection) Act, is a defense available to a Public Officer who had acted in line with the duties imposed on him by law. There is no allegation of bad faith or acting outside the scope of its authority against the Appellant by the 1st Respondent, which would have taken away the protection

afforded it by the Public officers Protection Act and validate the 1st Respondent’s Suit filed way outside the three months limitation period.”
See also Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547, where the Supreme Court per Adekeye JSC, had put this issue succinctly and with the finality it deserves thus:
“A Public Officer can be sued outside the limitation period of three months if all time material to the commission of the act complained of, he was acting outside the color or scope of his office or outside his statutory or constitutional duty.”
See further Ibeto Cement Co Ltd V. AG. Federation (2008) 1 NWLR (Pt. 1069) 470 @ pp. 499 – 501; AG. Rivers State V. AG. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 @ p. 148; Egbe V. Belgore (2004) 8 NWLR (Pt. 875) 336; Sule & Ors V. Orisajimi (2019) LPELR 470 (SC).

In the circumstances therefore, issues two and four are hereby resolved in favour of the Appellants against the Respondents. The judgment of the Court below dismissing the Appellants’ Suit for being statute barred is perverse and thus liable to be set aside and it is hereby without much ado set

aside in its entirety. In Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V. Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), this Court per Georgewill JCA, had reiterated inter alia thus:
“A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.”

My lords, having set aside the judgment of the Court below and holding firmly that the Appellants’ Suit is not statute barred, I shall and do hereby invoke the provisions of Section 15 of the Court of Appeal Act 2004 to consider the Appellants’ Suit on the merit, a duty which the Court below has brazenly abdicated from doing. Happily, the Appellants’ Suit is one commenced by means of Originating Summons and fought on the affidavits, counter affidavit and documentary evidence of the parties as in the Record of Appeal. I proceed anon to consider the merit of the Appellants’ Suit, which is the subject matter of issues one and three

in this appeal.

ISSUES ONE AND THREE TAKEN TOGETHER
Whether by the decision of the Court below in dismissing the Appellants’ Originating Summons on the ground that it is statute barred, the Court below has not by necessary implication upheld the validity of the issuance of Exhibits B5 -B9 and the dissolution of the Commission, without considering the interpretation of the Constitutional and legal issues raised in the Originating Summons vis-a vis the binding effect of the Supreme Court cases of Rt. Hon. Michael Balonwu & Ors V. Governor of Anambra State (2009) 177 LRCN 1 and Marwa & Ors V. Nyako (2012) 204 LRCN 1 cited before it AND whether the issuance of Exhibits B5 – B9 by the 1st Respondent in dissolving the Law Review Commission is within his constitutional powers and/or all other enabling laws as decided by the Court below?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellants had submitted that the Court below was wrong to have dismissed the Appellants’ Suit without considering the legal issues raised therein and thereby impliedly validating the wrongful actions of the 1st Respondent

against the Appellants and contended that in law the acts and appointments done by Prof. O. Osunbor whilst in office as the Governor of Edo State remained valid notwithstanding his ouster by the judgment of the Court of Appeal delivered on 11/11/2008 and urged the Court to hold that the removal of the Appellants without complying with the provisions of the enabling law but merely on the basis that their appointment had been nullified by the nullification of the Government of Prof O. Osunbor who had appointed them on 28/4/2008 was unconstitutional, null and void and to allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellants against the Respondents. Counsel referred to Sections 138 and 149 of the Electoral Act 2006 and relied on Rt. Hon. Michael Balonwu & Ors V. Governor of Anambra State (2009)1 Vol. 177 LRCN 1 @ p. 4; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20.

It was also submitted that there was nowhere in the Judgment of the Court of Appeal delivered on 11/11/2008 nullifying the election of Prof O. Osunbor as Governor of Edo State wherein the actions and appointments of Prof O. Osunbor done

or carried out whilst he was in Office as Governor of Edo State, at least de – facto, were nullified by the Court of Appeal and contended that the action of the 1st Respondent based on such grave misconception without due compliance with the enabling law setting up the Law Review Commission in dissolving the said Commission and thereby removing the Appellants from Office was not only without any semblance of legal justification but was equally unconstitutional and ultra vires the powers of the 1st Respondent and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellants against the Respondents in the interest of justice and to check impunity in the exercise of executive powers. Counsel referred to the Constitution of the Federal Republic of Nigeria 1999 (as amended) as the grundnorm; the Electoral Act 2006 and relied on Marwa V. Nyako (2012) 204 LRCN 1 @ p. 20; Balonwu V. Governor of Anambra State (2009) 18 NWLR (Pt.1172)3 @ p. 49; Senator Festus Bode V. INEC & Anor (2012) LPELR-9854 (CA)per Bada JCA @ pp. 4-5.

On issue three, learned counsel for the Appellants had

submitted that the 1st Respondent’s action in issuing Exhibits B5-B9 to the Appellants and thereby dismissing them from the Public Office they hold which was regulated by an existing law was unconstitutional and invalid and contended that in law there is no time limit for approaching the Courts to set aside an action which is void and null ab – initio, such as Exhibits B5 – B9 deemed not to be in any existence, and of no effect whatsoever and urged the Court to hold that on the unchallenged affidavit and documentary evidence of the Appellants, they proved their entitlement to all the reliefs claimed by them against the Respondents and to allow the appeal, set aside the perverse judgment of the Court below and enter judgment on the Appellants’ Originating Summons against the Respondents. Counsel relied on Anyanwu V. Uzowuaka 117 LRCN 1.

1ST – 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
As part of his submissions on his sole issue, learned counsel for the 1st and 2nd Respondents had submitted that the Court below was right when it held that the 1st Respondent had and exercised his constitutional Power to issue Exhibits B5 – B9 and therefore

the act of removing the Appellants from office was valid and contended that in law it was within the constitutional powers of the 1st Respondent to appoint as well as remove the Appellants as public officers of Edo State, though appointed by a Governor with a stolen mandate whose election was justifiably nullified by the Courts and urged the Court to hold that the Appellants failed to prove how their appointment is beyond the constitutional powers of the 1st Respondent to hire and fire them at his pleasure and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 208(1) of the Constitution of Nigeria 1999 (as amended)

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the 3rd Respondent had submitted that the Court below was right when it held that the removal from office of the Appellants by the 1st Respondent was valid and constitutional and contended that in law the 1st Respondent had the constitutional power to appoint and remove public officers, including the Appellants and urged the Court to hold that not only did the Appellants failed to prove any entitlement to all

or any of their claims against the Respondents, some of their claims amount to doing the impossible and thus incapable of being granted and to dismiss the appeal and affirm the correct judgment of the Court below. Counsel referred to Section 208(1) of the Constitution of Nigeria 1999 (as amended) and relied on Geosite Survey (Nig.) Ltd. V. Nwagbara (2007) All FWLR (Pt. 386) 752@ p. 762.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant merely rehashed and reiterated his earlier submissions in the Appellant’s brief, which is not the purpose and purport of a reply brief. The reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief, is not and cannot be an avenue for the Appellant to re – argue his appeal or merely to have second bite at the cherry.
The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is

nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus:
“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
See Olafisoye V. FRN 2004 1 SC Pt. II 27; Ikine V. Edjerode (2001) 12 SC (Pt. II) 94; Longe V. FBN (2010) 2 – 3 SC 61.
I have gone through the gamut of the reply brief of the Appellant and I find that it failed to meet the requirements of a reply brief. Indeed, it brought nothing worth anything to the table in this Appeal that has not already

been submitted upon in the Appellant’s brief. In the circumstances therefore, I hereby unhesitantly discountenance the Appellant’s Reply brief in its entirety as going to no issue in this Appeal.

RESOLUTION OF ISSUES ONE AND THREE
My lords, I had in the course of considering issues five, two and four above set out in great details the facts as placed before the Court below by the parties as in the Record of Appeal. There are really not much disputes as to the facts of this appeal. Whilst on the one hand, the Appellants state that their appointment was guided by the provisions of the Revised Edition Law of Edo State 2001, which also regulates their tenure and removal, and therefore, their removal by the 1st Respondent outside the provisions of the enabling law was unconstitutional and ultra vires the powers of the 1st Respondent, on the other hand the 1st and 2nd Respondents state that the Appellants are persons who occupied offices subject to the power of appointment and removal by the 1st Respondent under Section 208(1) of the Constitution of Nigeria 1999 (as amended) and therefore, Exhibits B5 – B9 were valid and the Appellants were

lawfully removed from office.
In its judgment, the Court below, which had merely considered if the Appellants’ Suit was statute barred or not, and had gone ahead to hold that it was statute barred and thus incompetent, had still made pronouncements validating Exhibits B5 – B9 on the removal of the Appellants from office on 24/11/2008, by the 1st Respondent, when it held inter alia thus:
“The 1st and 2nd Respondents are public officers… the Claimants are complaining that by a letter dated 24/12 the 1st Defendant wrongfully terminated their appointments. This Court therefore has to determine if the 1st Defendant had the powers to terminate the appointment of the Claimants… Section 208 (1) of the Constitution of the Federal Republic of Nigeria 1999 gives the Governor power to appoint and remove certain persons from office. The offices are listed in Subsection 2(a) to (d) of the said Section 208 of the Constitution. Subsection (c) mentions ‘Permanent Secretary, or any other Chief Executive in any Ministry or Department of the Government of the State howsoever designated. From the above, it is clear that the Claimants fall under

Subsection (c) of the category of officers the Governor has the power to appoint and remove. This is therefore a constitutional power vested in the office of a State Governor…” See pages 394 -406 of the Record of Appeal.
Now, by Section 2(1) of the Revised Edition (Laws of Edo State of Nigeria 2001), which came into effect on 27/11/2001, the Law Review Commission of Edo State was established and by Section 7(1) of the said law, the tenure of the Appellants was fixed at five years and renewable for another five years term. The office the Appellants hold is not that of political appointees governed by Section 208(1) of the Constitution of Nigeria 1999 (as amended) but a public office backed with statutory flavor under the Revised Edition Law of Edo State of Nigeria 2001 and thus, in my finding, can only be terminated in line with the prescriptions of the enabling law. There is no doubt whatsoever about the enormous powers of the 1st Respondent as Governor of Edo State to appoint and remove persons, including the Appellants but the power to remove the Appellants, unlike the power to remove his political appointees, is not at his pleasure but

subject to the provisions of Sections 4, 5 and 7 of the Revised Edition Law of Edo State of Nigeria 2001. He can therefore, neither remove them at his pleasure nor whimsically without compliance with the Revised Edition Law of Edo State 2001. This is what makes all the differences between the appointment of the Appellants and those of the 1st Respondent’s political appointees, who by virtue of Section 208(1) (c) of the Constitution of Nigeria 1999 (as amended) are obligated to leave office upon the cessation of his tenure if he had not earlier removed them at his pleasure. See Section 208 of the Constitution of Nigeria 1999 (as amended), which provides inter alia thus:
208 (1) “Power to appoint persons to hold and act in the office to which this section applies and to remove persons so appointed from such office shall rest in the Governor of a State.
(2) The Officers to which this Section applies are namely:
(a) Secretary to the Government of the State.
(b) Head of the Civil Service of the State.
(c) Permanent Secretary or other Chief Executive in any Ministry or Department of the Government of the State howsoever

designated; and
(d) Any office on the Personal Staff of the Governor.
(5) Any appointment made pursuant to paragraphs (a) and (d) of Subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office.”
So, looking at Exhibits B5 – B9, in the light of the provisions of Sections 4, 5 and 7(1) of the Revised Edition Law of Edo State 2001 providing specifically for the means of removal of the Appellants from office, was the action of the 1st and 2nd Respondents in removing the Appellants from office on 24/11/2008 merely because the election of Prof O. Osunbor, who had appointed them on 28/4/2008 as the Governor of Edo State, at least de – facto, was annulled by the judgment of the Court of Appeal delivered on 11/11/2008 and without even a pretense to comply with the provisions of the Revised Edition Law of Edo State 2001, valid or legal and or and constitutional? I think not.
Interestingly, then in 2009 even the 3rd Respondent had condemned by its resolution of 6/5/2009 the unlawful removal of the Appellants as a brazen breach of the enabling law and called for their immediate

reinstatement but curiously now in 2021 it is contending in its brief that the removal was valid and lawful. What has changed if I may ask to warrant this summersault? Has the 3rd Respondent passed another resolution setting aside its earlier resolution or has it amended the Revised Edition Law of Edo State 2001 to vest the removal of the Appellants at the pleasure of the 1st Respondent? None of such was placed before the Court below and none of such can I find in the Record of Appeal. I believe therefore, nothing has changed and I consider the summersault of the 3rd Respondent, devoid of any supporting fact, a regrettable one against and contrary to the dictates of the rule of law in Edo State and an approval of lack of accountability by those in power in a democratic dispensation.
Thus, I find that when the 1st Respondent through the 2nd Respondent purportedly removed the Appellants from office vide Exhibits B5 – B9 on the baseless and whimsical grounds that “following the unanimous decision of the Court of Appeal which declared the Government of Senator (Prof.) Oserheimen Osunbor (i.e the Government that appointed you) null and void” at

page 111 of the Record of Appeal, which was not true and clearly contrary to what the Court of Appeal did by annulling the election of and not the Government of Prof O. Osunbor, they were not only merely imposing their misapprehension of the Judgment of the Court of Appeal on the Appellants but they were also elevating arbitrariness on their part as an art of statecraft in their whimsical desire to remove the Appellants from office without following the due process of the law. In my view, it was just a smokescreen by the 1st and 2nd Respondents to act illegally and unconstitutionally against the Appellants in the euphoria of assumption of office of the 1st Respondent as the Governor of Edo State following his victory at the Court of Appeal on 11/11/2008 and nothing else, nothing less and nothing more! See Sections 138 and 149 of the Electoral Act 2006. See also Rt. Hon. Michael Balonwu & Ors V. Governor of Anambra State (2009)1 Vol. 177 LRCN 1 @ p. 4, where the Supreme Court had on this vexed issue pronounced with finality inter alia thus:
“Thus, once the powers, the rights and the limitations under the Constitution are identified as having been

created, their existence cannot be disputed in a Court of law. The fact that he had to vacate office at the end of the Court proceedings challenging his Election in accordance with the provisions of the Constitution and the Electoral Act cannot invalidate any powers or duties exercised or performed by him while in office.”
See further Marwa V. Nyako (2012) 204 LRCN 1 @ p. 20 where the Supreme Court had reiterated its earlier position on this now seemingly settled issue inter alia thus:
“It therefore means that the consequences of the annulled election is different from a null and void proceeding or act which is usually described as being incurably bad and of no effect whatsoever… I hold the considered view that to uphold the validity of the acts of the Governors in office prior to the nullification of their election and reject the period they spent in Office during which time they performed those acts in the determination of the period of their tenure is contrary to common sense and the clear intention of the framers of the Constitution… The said Governors may not have been de – jure Governors following the nullification of their

Elections; they were certainly Governors de – facto during the period they operated ostensibly in accordance with the provisions of the Constitution and Electoral Act.”
My lords, the ‘Rule of Law’ is sacrosanct or at least supposed to be so, in every democracies of the World, including Nigeria and it frowns at all forms of impunity, which must stop. Thus, whilst on assumption of office by the 1st Respondent all the political appointees of Prof O. Osunbor, who already know and do not even wait for the incoming Governor to remove them, would go with their appointer unless reappointed by the new Governor but it is not so with persons holding public offices backed by statutory favor as their removal must still follow due process of law in line with the enabling law and not just at pleasure of the new Governor. The 1st and 2nd Respondents were therefore wrong and indeed fell into grave error of judgment when they proceeded to treat the Appellants as mere political appointees that they can remove at the pleasure of the 1st Respondent. No, they cannot do so except in line with the provisions of the Revised Edition Law of Edo State 2001.

Thus, to ignore the enabling law and whimsically removing the Appellants whose tenure of five years was protected by law was grossly unconstitutional and illegal. It is sheer impunity which has gone on for far too long in this Country and must be stopped by the law. All persons in authority are bound by the oath of office they take to abide by the Constitution of Nigeria and the Laws of the land. Therefore, whenever, they act contrary to and in disregard of the Laws of the land, then impunity results and which if not checked by law becomes one capable of and does often lead to dictatorship, which cannot be allowed to fester at any level of governance in our democratic dispensation. In Okafor V. Lagos State Govt. & Anor (2016) LPELR-41066(CA), this Court per Georgewill JCA, had cause to pronounce inter alia thus:
“In my view, this seemingly innocuous appeal by humble citizen Faith Okafor carries with it the potential of deepening further the norms of democratic governance in Lagos State, nay Nigeria. Those who govern must do so in due compliance with the due process of law. After all, it is the same due processes of law that enable their ascendancy to

their respective offices as the case may be. To observe the law of the land in breach is to do havoc to letter and spirit of the law of the land and desecrate the sanctity of the norms of democratic governance, the form of government easily accepted as the best form of governance in the world…It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead… An action which if allowed to thrive in a democracy such as ours could confer on such office holders infinite, absolute and autocratic powers contrary to the clear provisions of the Constitution of the land, to which both the leaders and the led are subject. I refuse to allow such autocratic, absolute and infinite powers to fester upon our nascent democracy… I have said it elsewhere in my contribution to a lead judgment sometimes last year in Appeal No. CA/YL/29/2015; Admiral Murtal Nyako V. Adamawa State House of Assembly, and I think it is worth reiterating here that the culture of impunity, this time as displayed by the Respondent in not only restricting the movement of the Appellant, a free Citizen

of this country, on 25/5/2013 but also arresting, prosecuting, convicting and punishing her not for any breach of any offence as prescribed in any written law but purportedly for breaching the directive of the Governor of Lagos State, which like many other acts of impunity in the land have been tolerated for far too long in this country and has indeed run its full circle must be stopped now.”
See also Omatseye V. FRN (2017) LPELR-42719(CA), per Georgewill JCA.
My lords, thrice have I spoken and indeed I have heard that above all and when all is said and done, in every society governed by democratic norms in which the Government is of the people, by the people and for the people, every actions of Government must be taken or done within the confines, purview and ambits of the operation of the ‘Rule of Law’. The Rule of law is the condition in which all members of the society, including the rulers and the led accept the authority of the law. It finds easy expression in the term “justice”, which must not only be done at all times but must be seen as having been done. It abhors injustice to anyone. It is thus a recipe for justice for

all. It propagates the notion of equality of all before the law without regards to social status, official position, education or wealth. It denotes absolute supremacy or predominance of law. Thus, observance of the laws of the land must be the guiding codes in the daily life of both the rulers and the led, so much so that none whosoever is exempted from the observance of the laws of the land. This is indeed the true essence of the ‘Rule of Law.’ See Prof A. V. Dicey: Introduction to the Study of Law of the Constitution, 10th Edition Macmillan Education Ltd, 1959 @ p. 202 . See also Garba & Ors. V. University of Maidaguri (1986) 1 NWLR (Pt.18) 550; Kalu V. The State (1988) 1 NWLR (Pt.90) 503 @ p.561.

In the circumstances therefore, issues one and three are hereby resolved in favor of the Appellants against the Respondents.

On the whole therefore, therefore, having resolved issues one, two, three, four and five in favour of the Appellants against the Respondents, I hold that the appeal has great merit and ought to be allowed. Accordingly, it is hereby so allowed.

In the result, the Judgment of the High Court of Edo State, Benin

Judicial Division, Coram: N. A. Imoukhuede J, in Suit No. B/375/OS/2009: Elder J. O. Aghimien & Ors V. The Executive Governor, Edo State & Ors delivered on 29/9/2014, in which the claims of the Appellants as Claimants against the Respondents as Defendants were dismissed for being statute barred by reason of the provisions of Section 2(a) of the Public Officers Protection Law of Edo State, is hereby set aside.

In its stead, the five questions set forth in the Appellants’ Originating Suit as ‘Questions A, B, C, D and E’, are hereby answered as follows, namely:
1. Question A is answered in the negative
2. Question B is answered in the negative
3. Question C is answered in the negative
4. Question D is answered in the positive to the extent only that it must be compliance with the provisions of the Revised Edition Law of Edo State 2001.
5. Question E is answered in the positive to the extent only that the 1st Respondent has the power to relieve the Appellants of their duty on or before the completion of their assignment but in compliance with the provisions of the Revised Edition Law of Edo State 2001.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Consequently, Appellants’ Relief Nos. A, B, and C only are hereby granted and it is hereby Declared and Ordered as follows:
a. It is Declared that the Dissolution of the Edo State Law Review Commission and consequent termination of the appointments of the Appellants on 24/11/2008 without due compliance with the provisions of the Revised Edition Law of Edo State 2001 by the 1st Respondent, the then Executive Governor of Edo State, is null, void and of no effect whatsoever.
b. An Order is hereby issued setting aside the letter of the 1st Respondent with Ref. No. SGA.470/T/7 and dated 24/11/2008 and signed by the 2nd Respondent as the then Secretary to the Government of Edo State on behalf of the 1st Respondent, having been issued without compliance with the provisions of the Revised Edition Law of Edo State 2001 and it is hereby set aside for being null and void and of no effect whatsoever.
c. An Order is hereby reinstating the Appellants to their aforesaid position as Chairman and Members of the Edo State Law Review Commission to serve out the remainder of their five years tenure from 28/4/2008 to 24/11/2008 and thereafter from the date of

this judgment being 25/3/2021 – 25/8/2025, totaling five years in line with Section 7(1) of the Revised Edition Law 2001 of Edo State, excluding the period from 24/11/2008 – 25/3/2021, unless the Appellants are removed in line with the provisions of the Revised Edition law of Edo State of Nigeria 2001.

However, Appellants’ Reliefs D, E and F, having been sufficiently covered by, and thus rendered superfluous upon the granting of, Appellants’ Reliefs A, B, and C as above in this Judgment, are hereby refused and dismissed.
There shall be no Order as to Cost.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment, in this appeal, just delivered by my learned Brother, B.A. Georgewill, JCA.

I agree that the appeal is imbued with merits, I equally allow it and abide by the consequential orders made in the said leading judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with the reasoning and conclusions in allowing the Appeal as

meritorious. I subscribe to the consequential orders made thereto and have nothing else to add to a well written judgment of my Learned Brother.

Appearances:

O. Edeki, Esq., with him, Osato Akenuwa, Esq. For Appellant(s)

O. Ojo, Esq., Assistant Director, Ministry of Justice, Edo State – for 1st and 2nd Respondents
O. O. P. Iyamu, Esq., with him, Constance Odion, Esq. – for 3rd Respondent For Respondent(s)

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