HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS & ANOR v. OBA ADEYINKA ONAKADE (2016)

HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS & ANOR v. OBA ADEYINKA ONAKADE

(2016)LCN/8565(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of May, 2016

CA/I/247/2013

RATIO

PUBLIC SERVICE: WHO AMOUNTS TO A PUBLIC OFFICER
By virtue of S.318(1) of the 1999 Constitution, public service of a State means the service of a State. Section 318(1) of the Constitution further provides for nonpolitical offices in the Government of the State. However, the Governor of a State is not in the public service of a State within the meaning of S.318(1) of the 1999 Constitution. The Deputy Governor, the speaker and all other political office holders are also not in the public service of a State.
Furthermore, “…the appointment was political as the 1st Respondent who was a chairman of a local government was not employed and issued letter of employment by the Local Government Service Commission”.
To nail the argument on who a public officer is, I commend the case pp 20-21,
AMAIZU JCA (DADA V. ADEYEYE Supra).
“The Governor of a State is not in the public service of that State within the meaning of S.318(1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of a State.
I am however aware that under the 5th Schedule to the Constitution, the definition of public officers, includes political officer holders. In my respectful view, the definition is only for the purpose of dealing with the code of conduct for public officers. This fact is clearly brought out in Part 11 of the said Fifth Schedule it reads
Public Officers for the purposes of the code of conduct
1. The President of the Federation.
2. The Vice president of the Federation etc”.
To this end the offices of the above cannot be said to be a creation of the Constitution as they cannot be subjected to the rules guiding the conduct of employees employed by Public Service Commission. Also see MOMOH V. OKEWALE (1977) 9 SC 81.
I support the Respondent on this issue to the effect that the Respondents are not public officers’ as their office is subject to the discretion of the Governor who has the right to appoint or discharge and is synonymous to master and servant relationship.
Although the Respondent got the fact that the Appellants are sued in respect of their action committed by the Governor, the Governor himself does not qualify as a public officer. Therefore the authority cited by the Appellants to that effect is not applicable to the instant case. The Section 318 (1) of the Constitution relied upon by the Respondents is not supportive of the argument of the Appellants in this appeal.
Section 318 (1) of the Constitution:
Further provides for non-political Officer in the Government of the State. However, the Governor of a State is not in the public service of the State within the meaning of Section 318 (1) of the Constitution of the Federal Republic of Nigeria 1999′ PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
INTERPRETATION: ATTITUDE OF COURT TO INTERPRETING WORDS LITERALLY
The provision of Section 318 (1) (g) clearly leaves no room for manoeuver. The issues of “include or including” has no application in the matter of the statutory status of political appointees. We are fortified in this decision by the pronouncement of the Apex Court in the case of ADETAYO & ORS V. ADEMOLA & ORS (2010) LPELR 155 SC per Ogbuegu JSC who held that:
“It is now settled in a number of decided authorities that in the interpretation of statutes where the words are clear and unambiguous in their ordinary meaning, effect must be given to them. PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.

JUSTICES:

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
2. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE – Appellant(s)

AND

OBA ADEYINKA ONAKADE
(THE ALAKENNE OF IKENNE) – Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Hon. Justice E. O. Osinuga of the Sagamu Judicial Division of the High Court, Ogun State.

The Respondent’s claims at the Lower Court are as follows;
1. A DECLARATION that the listing of Alakenne of Ikenne stool as vacant on page 15 of the Programme of Inauguration of the Reconstituted Council of the Obas in Ogun State Exhibit E is null and void and of no legal effect.
2. AN ORDER setting aside the listing of Alakenne of Ikenne stool as vacant in Exhibit E.
3. AN ORDER of Perpetual Injunction restraining the Defendants/Respondents from making use of the listing of the Alakenne of Ikenne stool as vacant in Exhibit E.
AND FOR SUCH OTHER OR FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstances.

By a Notice of Preliminary Objection dated 22/1/2013 and filed on 23/1/2013 the Appellants, who were the Defendants objected to the Jurisdiction of the trial Court to entertain and determine the suit. The ground of objection is that the suit is statute

barred. That the time limit of three months for the institution of the suit had lapsed. The said preliminary objection filed by the Appellants was dismissed by the Court.

Dissatisfied with the decision, the Appellants have come to this Court for redress.

APPELLANT’S CASE
The contention of the Appellants is that the Court cannot entertain the suit because it is statute barred because of the time limit for the institution of such action which is 3 months from the date of the accrual of the cause of action.

The cause of action i.e the stool of Alakenne was declared vacant on the 14th day of December, 2011. The action against such declaration was filed on 3/5/2012 which was over 3 months of the time limit. This line of argument forms the basis of the preliminary objection.

RESPONDENT’S CASE:
In response to the preliminary objection the Respondent filed a written address in opposition.

What stirred the hornets’ nest was the program of the inauguration of the Reconstituted Council of the Obas in Ogun State held on 14th December, 2011 which had the stool of the Alakenne of Ikenne listed as vacant. As a result, the incumbent

holder of the stool was not allowed to partake in the meeting of the Reconstituted Council of Obas in Ogun State.

This prompted the Respondent to institute an action against the Appellant before the Sagamu High Court in 2012.

Two issues were formulated and adopted by the parties.
1. Whether the Appellants are Public Officers.
2. Whether the provision of the Public Officers’ Protection Laws of Ogun State, 2006 did not apply to protect the Appellant and whether the action is not statute barred in line with S. 2(a) of the Public Officers’ Protection Law.

As regards issue 1, on the basis of who a Public Officer is it is the submission of the Appellant, that in line with S. 318(1) of the 1999 Constitution, which listed’ public officers, that the list is not exhaustive; therefore that the Appellants can be deemed to be included though not listed. (Cites – ARTA INDUSTRIES NIG. LTD. V. NBCI (1998) 4 NWLR (part 546) 357 @ 375).

The Appellants equally maintain that Government includes those who exercise power on its behalf.

In their contention that the Appellants are public officers, the Appellants cite S.18(1) of the

Interpretation Act, LFN, 2004 to the effect that public officer includes a person holding any of the offices, specified in Part II of the Fifth Schedule of the Constitution.

Cites Anozie v. Attorney General of the Federation of Nigeria & ORS (2008) 10 FWLR (Part 1095) 278 @ 290 to the effect that offices of Attorney General connotes Public Officers in Law – Per BADA JCA.

Issue 2 is whether the action of the Respondent is not statute barred by virtue of Section 2(a) of the Public Officers Protection Law. Section 2(a) stipulates 3 months as statutory period of limitation for commencing any action against a public officer for an action done in the execution of his official duty – (see EGBE V. ADEFARASIN (1985) 1 NWLR (Part 3) 549).

The Appellant argue that the cause of action arose from the 14th day of December, 2011, (Exhibit E) pages 14 and 15 of the record. Therefore that the Originating summons of the Respondent dated 3rd day of May, 2012 is well over 4 months. The action is therefore statute barred, contend the Appellants.

Respondents submit that the Appellants are not qualified as Public Officers therefore they cannot be protected by

the provisions of Section 2(a) of the Public Officers’ Protection Laws of Ogun State, 2006.

The learned trial Court was of the humble opinion that assuming without conceding that the cause of action of this nature must be brought within the stipulated period of 3 months, there is need to consider other surrounding circumstances of the suit at hand.

His Lordship notes that the 1st Respondent is the Commissioner for Local Government and Chieftaincy Affair and the second is the Attorney General and Commissioner for Justice.

The trial judge held that the two are appointees of the Governor and that such appointments are not governed by statute. That same conditions regulating the employment of these officers under statute cannot be extended to the above mentioned two. e.g conditions for dismissal and discipline.

Equally, that there is no uncontroverted evidence that the two are acting the script of the Governor and the post of Governorship does not fall within the concept of public service by virtue of the meaning of Section 318(1) of the Constitution.

I have the exposition of the learned trial Judge formidable and therefore crave

indulgence to reproduce same anon:-
I have carefully read the definition of the “Public service of the State” as stated in Section 318(1) of the Constitution. I have already set down to whom it refers. It therefore goes without saying that neither the speaker nor the non-statutory officer described as “majority Leader”. (Which term or office is unknown in our statutory law) nor any member of the House is a public officer for the purpose of Section 318(1) aforesaid. So, Section 318 does not include any member of the House at all. In Interpretation Act Cap. (1992) 1990, Law of the Federation of Nigeria, the term public officer is defined as follows: “Public officer means a member of the public service of Nigeria and Public service of the State.”
It seems to me that somehow the two interpretations as contained in the two statutes are saying the same thing. In other words, the term Public officer should only relate to the holders of the offices as reflected only in Section 318 of the Constitution of Federal Republic of Nigeria. That is to say, the public officer referred to in the Interpretation Act can only be described to be referable to those

enjoying employments with statutory flavour as reflected in Section 318(1).
In DADA V. ADEYEYE (2005) 6 NWLR (Part 920) 1 at 19 para DE it was held that: The question then is what is a person in the public service of a State? The answer can be found in the definition of the words ‘public service of a State”, Section 318(1) of the Constitution defines the word as:
“Public service of a State” means the service of the State in any capacity in respect of the Government of the State and includes service as”.
The provision goes on to enumerate non-political offices in the Government of the State.
It was further held at pages 19-20 para H-A that:
From the above definition therefore, it is clear that the Governor of a State is not in the Public Service of that State within the meaning S.318(1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of the State. “It was also held at page 22 para E that:
in the first instance, having admitted that the office occupied by the 1st Respondent prior to the election is not a creation of the 1999 Constitution it follows that it’s

occupant cannot be subjected to the provisions of Section 66(1)(f) of the said 1999 Constitution.
The said Section 66 (1) (f) of the 1999 Constitution considered in the judgment above has identical provision with Section 182(1)(g) of the same Constitution. The only difference between the two is that the former relates to qualification to senate or House of Representatives; while the latter is in respect of the office of the Governor. In MOMOH V. OKEWALE (1977) 6 S.C. 81, (1977) 11 NSCC 365, the Supreme Court held that a driver who was employed by the LAGOS City of Council was not a public officer. The Court decided that there was no evidence that he was appointed by the public Service Commission either of the Federal or LAGOS State.
On the factors for determining a public officer the Court of Appeal in the case of REGISTERED TRUSTEE PPFN V. SHOGHOLA (2004) 11 NWLR (Part. 883) 1 at 20 para, C-E Per Chukwuma-Eneh JCA (as he then was) stated thus:
The Respondent in his brief had been described as a public officer in a Statutory body… this connotes that the Respondent was holding a public office, this added to the confusion in the matter…. none

of the three factors that must co-exist to constitute a public office namely that the office was created by the Constitution, statute or other enabling legislation, secondly that it’s function, duties and powers are as defined by law and other regulation; thirdly that the position must show some permanency: appear to be present here.
I cannot but agree with the Appellants that from the authorities the following material ingredients of a public officer within the intendment of Section 318(1) of the Constitution are as follows-
(a) The term “Public officer or servant relate only on the holders of the offices as reflected only in Section 318(1) of the Constitution.
(b) Refers to those officers whose employment enjoy statutory flavour as reflected in S.318(1) of the 1999 Constitution.
(c) The office must be a creation of the Constitution Statute or enabling legislation.
(d) The functions, duties and powers are as defined by law and other regulation.
(e) The office must have some permanency.
(f) A person employed by the public Service Commission of the Federation or State is a public officer.
(g) Political office

holders cannot qualify as being in the public service of a State.
The 1st and 2nd Respondent herein are to my mind as chief of Staff and Civil Commissioner appointees of the Governor of Abia State and hold their offices at the mercy of the Governor. The appointments and dismissal are sometimes made in the media-electronic or prints.
Except in employment governed by statute where the procedure for employment and discipline (including dismissal of an employee are clearly spelt out any other employment outside the statute is an employment of Master and Servant, IBAMA V. S.P.D.C. OF NIGERIA (2006) 7 WRN 160, at 196 – 197. Per SHOREMI, J.C.A. (PP.24-28, paras. C-A)”
In Dada v. Adeyeye (2005) 6 NWLR pp 19-20.

On the issue 1
By virtue of S.318(1) of the 1999 Constitution, public service of a State means the service of a State. Section 318(1) of the Constitution further provides for nonpolitical offices in the Government of the State. However, the Governor of a State is not in the public service of a State within the meaning of S.318(1) of the 1999 Constitution. The Deputy Governor, the speaker and all other political office

holders are also not in the public service of a State.
Furthermore, “…the appointment was political as the 1st Respondent who was a chairman of a local government was not employed and issued letter of employment by the Local Government Service Commission”.
To nail the argument on who a public officer is, I commend the case pp 20-21,
AMAIZU JCA (DADA V. ADEYEYE Supra).
“The Governor of a State is not in the public service of that State within the meaning of S.318(1). The Deputy Governor, the Speaker and all other political office holders are not in the public service of a State.
I am however aware that under the 5th Schedule to the Constitution, the definition of public officers, includes political officer holders. In my respectful view, the definition is only for the purpose of dealing with the code of conduct for public officers. This fact is clearly brought out in Part 11 of the said Fifth Schedule it reads
Public Officers for the purposes of the code of conduct
1. The President of the Federation.
2. The Vice president of the Federation

etc”.
To this end the offices of the above cannot be said to be a creation of the Constitution as they cannot be subjected to the rules guiding the conduct of employees employed by Public Service Commission. Also see MOMOH V. OKEWALE (1977) 9 SC 81.
I support the Respondent on this issue to the effect that the Respondents are not public officers’ as their office is subject to the discretion of the Governor who has the right to appoint or discharge and is synonymous to master and servant relationship.
Although the Respondent got the fact that the Appellants are sued in respect of their action committed by the Governor, the Governor himself does not qualify as a public officer. Therefore the authority cited by the Appellants to that effect is not applicable to the instant case. The Section 318 (1) of the Constitution relied upon by the Respondents is not supportive of the argument of the Appellants in this appeal.
Section 318 (1) of the Constitution:
Further provides for non-political Officer in the Government of the State. However, the Governor of a State is not in the public service of the State within the meaning of Section 318 (1)

of the Constitution of the Federal Republic of Nigeria 1999′

The agitation of the Appellants is the basis of the decision of this Court per Obadina JCA that the Governor of a State is a public officer since he is a member of a public service of the State; hence anyone acting in his behalf is deemed a public officer also.

The Respondent’s line of argument is preferable to the effect that there is nowhere that it was shown that the Appellants were actually acting on behalf of the Governor and within the scope of the authority granted to them. The Appellants cannot therefore find respite under the statutory coverage of the Governor.

The further argument of the Appellants is that their respective appointments fall under the provisions of Section 318(1) of the 1999 Constitution as amended. Their reasoning being that by the use of the prefix “includes and including”, that the non-listing-of their offices does not necessarily exclude them.

Use of the prefix “includes or including” is cited to buttress the Appellant’s position. (See ARYA IND LTD VS. NBCI (1998) 4 NWLR (PT.546) 357 @ 375).

The provision of Section 318 (1) (g)

clearly leaves no room for manoeuver. The issues of “include or including” has no application in the matter of the statutory status of political appointees. We are fortified in this decision by the pronouncement of the Apex Court in the case of ADETAYO & ORS V. ADEMOLA & ORS (2010) LPELR 155 SC per Ogbuegu JSC who held that:
“It is now settled in a number of decided authorities that in the interpretation of statutes where the words are clear and unambiguous in their ordinary meaning, effect must be given to them.

Issue 2
Having held that the two Respondents do not, by the nature of their appointment fall under the provisions of Section 318(1) of the Constitution, issue two becomes irrelevant in the determination of the suit of the Appellants.

The implication is that the Appellants’ appointments do not enjoy any statutory flavour.

It is clear that the provisions relied upon deal with the protection of public officers and can only be extended to those who are covered under the provision. In other words, the Respondents hold their office at the pleasure of the Governor who appoints them.

The actions of such officers

are not therefore shielded by the three months limit.
In the circumstances, this appeal is without merit and is hereby dismissed.

The Ruling of the trial Court is hereby affirmed. The learned trial Judge shall proceed to hear and determine the suit of the Respondents as Claimants.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Dongban-Mensem, JCA. I fully agree with all his reasonings and conclusions. I too would dismiss this appeal and also not make any order for costs.

NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment in this appeal delivered by my lord Monica Bolna’an Dongban-Mensem JCA.

The central issue herein is whether the appellants i.e. commissioner for Local Government and Chieftaincy Affairs and the Attorney Onakade (The Alakenne of Ikenne) are Public Officers within the contemplation of the Public Officers protection Law of Ogun State. My lord in the lead judgment held that appellants are not such Public Officers. I agree.

Public Service of a State is defined in

Section 318 of the Constitution 1999 (as amended). In the interpretation of statutes, what is not expressed is excluded. Expressio unius est exclusio alterius – the express mention of one thing is the exclusion of the other not mentioned; what is not included in a statute is not to be read into it.

The Commissioner and Attorney are not within the contemplation of the Public Officers Protection Law of Ogun State and cannot claim protection thereof.

Appearances

Mrs. Y. Oresanya (Ministry of Justice Ogun State) For Appellant

AND

O. A. Akinsanya with him, O. M. Solaja For Respondent