Chief T.A. Adesoye & Ors. V. Governor of Osun State & Anor (2004)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, J.C.A.

This is an appeal against the ruling of A. A. Sijuwade, C.J. (as he then was) of Osun State High Court of Justice, Osogbo delivered on the 17th day of May, 2000 in suit No. HOS/MISC.21/2000.

The ruling was based on the preliminary objection raised by the defendants now respondents against the action filed by the plaintiff now appellants.

The plaintiffs initiated the action in the court below by an originating summons in which they sought the following reliefs:
“(a) Whether the last phrase of section 5(2) of the Post Primary Schools Teaching Service Commission Law, 1992 which provides that the Governor may vary the period of appointment of the applicants is unconstitutional by virtue of:
(i) the provisions of the Constitution of the Federal Republic of Nigeria 1999?;
(ii) the fact that the law makes the said variation final and did not provide opportunity for the applicants to make representation to the Governor before the variation?.

(b) Whether the circular, exhibit JOA 13 attached to the affidavit in support of this application, purportedly issued by the secretary to the Osun State Government on 28th July, 1999 is in compliance with section 5(2) of the Post Primary Schools Teaching Service Commission Law, 1992 as far as it relates to the Governor of Osun State to vary the six applicant’s period of appointment?.

(c) Whether on a proper construction of sections 5 and 6 of the Osun state Post Primary Schools Teaching Service Commission Law, 1992, the Governor of Osun state has the right to dissolve the Osun State Post Primary Schools Teaching Service Commission and/or terminate the appointment of the Chairman and Members of the Commission for reasons other than those stated in section 6(a), (b) and (c) of the law?.

If the answer to any of the questions in (a), (b) and (c) are in favour of the applicants, (sic) then the applicants are seeking the following consequential reliefs:
(i) An order directing the defendants to recognise the applicants as the current holders of the offices of Chairman and members of the Osun State Post Primary Schools Teaching Service Commission, instruct all relevant officials of Osun State Government to grant them access to their offices and pay their salaries and emoluments from the time of purported unlawful .dissolution of the Commission up to date.

Or in the Alternative:
(ii) Paying all the salaries and emoluments of the applicants from the date of the unlawful dissolution of the Commission to the date all the applicants would have completed their five years term under their respective letters of appointment.”

The facts of the case are briefly that the appellants were Chairman and members of the Osun State Teaching Service Commission by virtue of letters of appointment served on each of them with effect from 9th of October, 1998. On the 28th of July, 1999, the 1st respondent dissolved all the Boards of the Parastatals which included all Corporations, Commissions, Agencies and Tertiary institutions in the State. A circular letter to this effect was served on each of the appellants. The appellants on the 22nd of September, 1999 protested in writing to the respondents with an appeal for reappointment as they were willing to continue to offer their services. The respondents took no action despite persistent pressure. Following the futile efforts by the appellants to regain their appointments, they instituted an action in the Osogbo Division of Osun State High Court of Justice by an originating summons of which the reliefs sought have been reproduced (supra).

The respondents reacted to the originating summons by filing a preliminary objection based on jurisdiction and lack of reasonable cause of action.

The learned counsel for the respondents and appellants respectively proffered arguments on the grounds raised in the preliminary objection.

On a due consideration of the submissions of the learned counsel on the preliminary objection, the court below ruled, inter alia:
“The preliminary objection on this score of Statute Limitation therefore fails and accordingly unsustainable.
In the result, however, all other grounds of preliminary objection succeed. They are well taken and sustained.
The plaintiff’s action, I therefore rule and hold, is incompetent for lack of jurisdiction and it is accordingly struck out with no order as to costs.”

The appellants were utterly dissatisfied with the ruling of the learned Chief Judge and jointly filed a notice of appeal containing five grounds of appeal.

The appellants identified the following four issues for the determination of the appeal:
“1. When did the plaintiffs’ cause of action arise in this matter?

2. What is the existing law governing the tenure of the plaintiffs’ appointment at the time the cause of action arose? Is it the Civil Service Commission and other Statutory Bodies etc. (Removal of certain persons from office) Act 1984 or Osun State Post Primary Schools Teaching Service Commission Law, 1992 and/or any other Law?

3. Can it be said that the High Court of Osun State lacks jurisdiction to entertain the plaintiffs’ action?

4. Whether the plaintiffs’ case as formulated discloses a reasonable cause of action?.”

The respondents on their part raised similar issues for the determination of the appeal. There is therefore no need to reproduce them.

At the hearing, the learned counsel for the appellants adopted and relied on the appellants’ brief of argument respectively filed on 2/7/2001 and 2/12/2002 and urged the court to allow the appeal.
The learned counsel for the respondents adopted and relied on their brief of argument filed on 19/11/2002 and urged the court to dismiss the appeal.

On issue 1, Badejo Esq., the learned counsel for the appellants, submitted that in a long line of cases it has been settled that the applicable law to a matter is that in force at the time the cause of action arose and he cited in support the cases of Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652 At 679; Uwaifo v. Attorney-General Bendel State (1982) 7 SC 124; and Chief Etuedor Utih & Ors. v. J. U. Onoyivwe & Ors. (1991) 1 NWLR (Pt. 166) 166. He urged that, despite the said settled principle, the court below ruled that the 1999 Constitution could not be applicable to the instant case as it was not in operation when the appellants were appointed.

On issue 2, the learned counsel argued that in view of section 4(8) of the 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the 1999 Constitution), the provision of ouster of court’s jurisdiction in the Civil Service Commission and other Statutory Bodies etc. (Removal of certain persons from office) Act 1984 Cap. 54 (hereinafter, referred to as the Removal Act 1984) is null and void and of no effect. He therefore submitted that the Removal Act 1984 is totally irrelevant in considering the law governing the appellants’ action.

He contended that in view of the moribund status of the Removal Act 1984, it is akin to a repeal of statute and its effect is to obliterate it (the Removal Act 1984) completely from the records of Parliament as if it had never been passed and should be considered as a law that never existed except for the purposes of those actions which were commenced, prosecuted and concluded whilst it was existing and he relied on the case of Madumere v. Onuoha (1999) 8 NWLR (Pt. 615) 422 at 430.

The learned counsel argued that since the Osun State Post Primary Schools Teaching Service Commission Law, 1992 (hereinafter referred to as the Teaching Service Commission Law, 1992) has not been repealed before 29th May, 1999 when the 1999 Constitution came into effect, it is an existing law but conceded that there is need for the appropriate authority, that is to say, the Governor of Osun State to make such modifications in the  of the said law to bring it into conformity with section 315(2) to (4) of the 1999 Constitution. By way of summation, the learned counsel submitted that the existing laws as at the time the cause of the instant action arose are the 1999 Constitution and the Teaching Service Law, 1992.

On issue 3, the learned counsel referred to the trite principle of law that the jurisdiction of the court is determined by the claim before it.

He referred to the ruling of the learned Chief Judge at page 22 lines 24 to 29 of the record of proceedings which is as follows:
“By virtue of the provisions of section 3 subsection 3 of the Civil Service Commission and Other Statutory Bodies etc. (removal of certain persons from office) Act, this action at the time the plaintiffs were appointed in 1998 precludes them from making redress if removed by the appropriate authority and as such ousts the court’s jurisdiction.”

Learned counsel argued that in the circumstances of the instant case, it could not be properly said that the lower court lacked jurisdiction to entertain the matter before it and relied on sections 6(6)(b) and 272 of the 1999 Constitution which are on judicial powers of Courts in the Federation of Nigeria. He therefore submitted that in as much as the appellants’ action is designed to determine and enforce their legal right to remain in office, the High Court of Osun State has unlimited jurisdiction to entertain the suit in point.

On issue 4 which is whether the appellants’ case as formulated disclosed a reasonable cause of action, the learned counsel submitted that it is trite that reasonableness of a cause of action is determined by the claim before the Court as enunciated in the case of Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257.

He submitted that the learned Chief Judge was in error to have proceeded in his ruling to interprete the meaning of the word ‘vary’ which led him to the conclusion that the plaintiffs’ (appellants’) claim disclosed no reasonable cause of action. He argued that the interpretation given to the word “vary” in section 5(2) of the Removal Act, 1984 was premature as none of the parties had addressed the lower court on the constitutionality of the said provision. He urged the court to hold the appellants’ cause of action disclosed a reasonable cause of action.

In response to all the issues raised in this appeal, J.A. Adeleke, Esq., the learned counsel for the respondents identified the real issue for determination in this appeal as the correct interpretation of the provisions of section 5(2) of the Teaching Service Law, 1992. He contended that by virtue of the enabling law, the Governor who is the appropriate authority had a discretion to vary the tenure of appointments without giving notice to the persons concerned under the law which was mutually understood by the parties before the appellants took up their appointments. The appellants could not therefore rightly say that they have a reasonable cause of action when the statutory discretion was accordingly invoked by the 1st respondent to the detriment of the appellants.

He argued that as at 9th October, 1998 when the appellants were appointed to the Board as Chairman and members of the Osun State Teaching Service Commission, the 1999 Constitution copiously referred to by the appellants was not in operation and as such could not be applicable and he relied on the same case of Olaniyi v. Aroyehun (supra) relied on by the appellants. The principle on applicable law was lucidly stated in that case that the law applicable to a matter is that in force at the time the cause of action arose not when the writ of summons was filed.

He expatiated that as at October 1998 when the appellants were appointed, the applicable law making provision for removal from office of certain persons from the Civil Service Commission is the Removal Act, 1984. He submitted that the section 3(3) of that Act, at the time of the appellants’ appointments, precluded them from seeking redress if removed by the appropriate authority and that that provision in effect ousted the court’s jurisdiction.

He urged that this court be guided by the principle enunciated on one of the duties of the courts as set out in the case of Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 at 56. He argued that since the relationship between the appellants and the respondents was contractual, the applicable law was the law in force at the time the contract was entered into and not the law that was applicable when the writ of summons was taken out and he relied on the cases of Abayol v. permanent Secretary Civil Service Commission (1991) 3 NWLR (Pt.182) 693 at 695 and 705; Olaniyi v. Aroyehun (supra) at 655 and 679 and Agwuna v. A.-G., Fed. (1995) 5 NWLR (Pt. 396) 418 at 422 and 423.

The learned counsel conceded that although the Teaching Service Law, 1992 had been repealed, the recourse to section 6(1)(a) of the Interpretation Act Cap. 192 Laws of Federation of Nigeria 1990 (hereinafter referred to as Cap. 192 of 1990) by the appellants could not revive anything that was not in force at the time when the repeal takes effect. In other words, the rights of the appellants’ access to court having been taken away cannot be revived by the provisions of Cap. 192 of 1990. He submitted that the appellants could not take benefit under a law which does not form the basis of their appointment and he relied on the cases of Madumere v. Onuoha (1999) 8 NWLR (Pt. 615) 422 at 423; Uwaifo v. A.-G., Bendel State (supra); Aremo II v. Adekanye (2000) 2 NWLR (Pt. 644) 257 at 273.

The learned counsel thereby urged the court to dismiss the appeal for want of merit and affirm the ruling of the lower court.

It is common ground in this appeal that the appellants were appointed to the offices of Chairman and Members of the Board of Osun State Teaching Service Commission on the 9th of October, 1998. It is equally common ground that the 1st respondent terminated the appointments of the appellants before the expiration of their five year tenure. It is also not in dispute that what prompted the instant action was the removal of all the appellants by the 1st respondent from their positions in the Osun State Teaching Service Commission on the 29th of July, 1999 when the 1999 Constitution had already come into effect. I agree with the learned counsel for the respondents that the issue of particular moment in this appeal is the correct interpretation of section 5(2) of the Teaching Service Commission Law, 1992.

The learned counsel for the parties made copious submissions on the said real issue. The learned counsel for the appellants placed considerable emphasis on the applicability of the 1999 Constitution while the learned counsel for the respondents had a divergent view that the operative law is the Teaching Service Commission Law of 1992.

The issue to consider is the operative law or laws in the prevailing circumstances of this case. It is a fundamental principle of our law that the rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question. It is equally trite that the law applicable to a matter is that in force at the time the cause of action arose and not the law when the writ of summons was filed. See: Olaniyi v. Aroyehun (supra); Abayol v. Permanent Secretary Civil Service Commission (supra) at 655, 679 and Agwuna v. A.-G., Federation (supra) at 422/423 This is the true state of the law as far as applicable law to an action is concerned.
There is no doubt that the circumstances which prevailed in the relationship between the parties in this case are contractual. The transaction was for service which had a defined tenure of five years.

The applicable law to any contractual relationship of parties is invariably the law in force at the time the contract was entered into and not the law applicable when the writ of summons was taken out.
In view of the foregoing, it is safe to uphold the submission of the learned counsel for the respondents that the operative law at the time the contract of service was entered into was the Teaching Service Commission Law 1992. The gravamen of the appellants’ action was no doubt their removal from office. As at the time the contract of service was gone into by the parties, there was an extant law to regulate removal of officers in the Teaching Service Commission.

The law was Removal Act 1984. It appeared that there were comprehensive guidelines in it to deal with any eventualities that might befall the relationship between the parties as at the time of the appointments of the appellants. The foregoing therefore ruled out the invocation of the 1999 Constitution which came into effect after the appellants had been appointed save certain sections of the 1999 Constitution which I shall deal with presently.

I shall, at the risk of repeating myself, say that the cause of the action instituted in the lower court is the removal of the appellants by the respondents from the Board of the Teaching Service Commission. The relevant laws are the Teaching Service Commission Law, 1992 and the Removal Act, 1984.

Section 5(2) of the Teaching Service Commission Law 1992 stipulates:
“(2) The Chairman or the other members of the Commission shall hold office for a period of four years or for such period as the State Governor may specify in the letter of appointment of each member. The Governor may vary such period of appointment without giving any notice.” (italics mine for emphasis.)

As regards the Removal Law 1984 it provides in its subsection (3) of Section 3 as follows:
“(3) No civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done by person under this Act and if any such proceeding has been or is instituted before, on or after the commencement of this Act, the proceedings shall abate, be discharged and made void.
(italics mine for emphasis.)

The purports of these two legislation are first that the Governor of Osun State has the power to appoint the Chairman and Members of the Board of the Teaching Commission for a period of four years or more and he also has a discretion to vary such appointment without giving any notice. In the instant case, the Governor of Osun State, as the 1st respondent, used his power to go beyond the statutory four year period and appointed the appellants to a five year term.

He, in fact, exercised the discretion given to him judicially by varying or increasing the tenure without giving any notice. This court has no power to interfere with the exercise of such judicial discretion as it was exercised regularly. It is otherwise if the exercise is improper or injudicious. See Woluchem v. Gudi (1981) 5 SC 291 at 295/296, 326-329; Ifeanyi Chukwu Osundu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt. 625) 1 SC. In effect the tenure of office of each of the appellants was a period of five years. That period therefore formed the bases of the period of service of the appellants and it cannot be ignored.

Secondly, the effect of the provisions in section 3(3) of the Removal Act, 1984 is that no action shall lie if any person was removed from the Civil Service or Statutory Bodies under the Federal or State laws for or on account of or in respect of any act, matter or thing done or purported to be done by any person. It is further provided that if such proceeding has been instituted before, on or after the commencement of this Act, the proceeding shall abate and made void. There is no doubt that Removal Act clearly contains ouster of court’s jurisdictions.

Since it was the relevant law in place when the appellants were appointed, they cannot effectively invoke the relevant provision of the 1999 Constitution as urged the appellants’ learned counsel to render section 3(3) of the Removal Act 1984 unconstitutional as that would be importing retroactivity into the provisions of the 1999 Constitution.

This view is backed by case law in Uwaifo v. A.-G. Bendel State (supra) where the Supreme Court held, inter alia:
“The Constitution (or any law) of the Federation is not made to have retroactive effect. Constitution like other statutes operates prospectively and not retrospectively unless it is expressly provided to be otherwise, such a legislation affects only the rights which came into existence after it has been passed. It is therefore incompetent for a party to institute an action after October 1, 1979 when the 1979 Constitution came into force to challenge an act which he could not have competently challenged before the promulgation of the 1979 Constitution…”

The appellants cannot therefore filed any solace in the application of section 4(8) of the 1999 Constitution to correct the alleged vexed provision ousting the jurisdiction of the court as provided for in the Removal Act, 1984 since it has not got any retroactive implication. Furthermore, the appellants cannot, in the light of democratic principles enshrined in the 1999 Constitution, now enjoy the benefit not contained in the stated applicable laws at the time the contractual relationship came into being.

It is pertinent to point that by virtue of section 315 of the 1999 Constitution on existing laws and in view of the non-democratic provisions in the Removal Act, 1984 and the Teaching Service Commission Law 1992, they fail to qualify as existing laws and they therefore become moribund. The question is, what then is the effect of such laws? Subsections (1)(a)(b), (e) and (e), and (2) of Section 6 of the Interpretation Act Cap. 192, Laws of the Federation of Nigeria provide the answer.

Subsection 1 of the said Act provides:
“6(1) The repeal of an enactment shall not:-
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;
(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;
…
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed.
(2) When an enactment expires, lapses or otherwise ceases to have effect, the provisions of subsection (1) of this section shall apply as if the enactment had then been repealed.” See Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134 at 146.

It therefore follows, in the instant case, that the two enactments which were in operation when the appellants were appointed though subsequently repealed, the operation of the relevant provisions therein were not affected by the implied repeal caused by the coming into effect of the 1999 Constitution. Thus, by virtue of the Interpretation Act, the inability of the appellants to recourse to court action in the event of act such as the alleged removal remained valid with effect from when they were appointed in October, 1998. Since recourse to court by either the appellants or the respondents had been ousted, the appellants could not be heard to have any cause of action not to talk about reasonable cause of action when the appellants filed an originating summons against the respondents on the 3rd March, 2002.

In retrospect, since the appellants did not have any cause of action, the Osun State High Court could not have jurisdiction to entertain the appellants’ action when it was initiated on 3rd March, 2002. This is so because their competence to recourse to court for redress in the event of any dispute had since the day of their appointment on 9th October, 1998 been ousted by section 3(3) of the Removal Act, 1984. The appellants were fully aware of that disabling provision and accepted the appointment to serve on the Board of Osun State Civil Commission. It is a case which fits into the doctrine of volenti non fit injuria.

The issue of constitutionality of the vexed provision does not arise as the erstwhile military dispensation accommodated ouster of the jurisdiction of courts in a good number of cases. I therefore find it difficult to fault the ruling of the lower court.

Thus, the lower court has performed its bounded duty admirably by being guided by the relevant laws which are the Teaching Service Commission Law 1992 and the Removal Act 1984 in determining whether the grouse of the appellants, that is to say, their removal from the Board of the Teaching Service Commission of Osun State by the respondents, was justifiable or not. Any recourse to the operation of the 1999 Constitution for a contractual relationship which was founded on the intendments of the operative Teaching Service Commission Law of 1992 and the Removal Act 1984 cannot be sustained.

To call in aid the provision of section 4(8) of the 1999 Constitution which expressly abhors ouster of court’s jurisdiction and which was non-existent at the time the appellants’ appointments were based on the Teaching Service Commission Law 1992 is to allow the 1999 Constitution operate retroactively. This would no doubt be an affront on the democratic principle on operation of the Constitution or statute which operated prospectively. See Uwaifo v. A.-G. Bendel State (supra); Aremo II v. Adekanye (supra) at 273 and Olaniyi v. Aroyehun (supra).

It is settled that the Court of Appeal is guided by rules. Thus, it is, inter alia, to review the case before it by way of rehearing. It only interferes with the decision of the court of first instance when it fails to avail itself of the advantages of seeing and hearing witnesses before it and arrives at a wrong evaluation. See Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41 at 56. I see no reason to interfere with the ruling of the lower court which is unimpeachable. I accordingly resolve all the four issues raised by the appellants against them.

In the final analysis, I hold that there is no merit in the appeal.

I dismiss the appeal and affirm the ruling of the court below. I award costs of N5,000.00 to the respondents.

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Other Citations: (2004)LCN/1588(CA)