Major General Kayode Oni & Ors V Governor Of Ekiti State & Anor (2019)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE. JSC
The Appellants were appointed full-time Chairman and Members respectively of the Ekiti State Independent Electoral Commission [E.S.I.E.C] by the State Governor. The first paragraph of the letters of appointment, dated 10/10/2008: and issued to each one. reads:
I am pleased to inform you that the Governor of Ekiti State Engr. Olusegun Adebayo Oni, has graciously approved your appointment as Full-time [Chairman/Member] State Independent Electoral Commission with effect from 8/10/2008. The appointment is at the pleasure of the Governor please.
The tenure of Engr. Olusegun Adebayo Oni as Governor ended on 15/10/2010 when his election was nullified by the Court of Appeal After the then new Governor, Dr. Kayode Fayemi, came on board,
the Appellants, on 22/10/2010. heard an announcement on radio that the new administration had dissolved all the Commissions.
Boards and Parastatals in Ekiti State, including the said E.S.I.E.C
When they were prevented from carrying out their functions, they instituted an action by way of Originating Summons praying the Ekiti State High Court to determine the following questions –
(1)Whether the Plaintiffs, who are Chairman and Members of the E.S.I.E.C. constituted under Sections 197 and 198 of the Constitution of the Federal Republic of Nigeria, 1999, can be removed or their tenure terminated and the Commission dissolved by the Defendants otherwise than in accordance with the provisions of Sections 199 and 201 of the Constitution of the Federal Republic of Nigeria;
(2)Whether the Defendants, who are the Executive Governor of Ekiti State and Chief Law Officer of the State, have the powers to dissolve the E.S.I.E.C. and relieve the Plaintiffs of their appointments without regard to Sections 199 and 201 of the Constitution of the Federal Republic of Nigeria.
(3)Whether the Defendants are not bound by the pro visions of the Constitution of the Federal Republic of Nigeria, 1999, in their decisions and actions concerning the Plaintiffs;
(4)Whether the purported dissolution of the E.S.I.E.C. and termination of the appointments of the Plaintiffs as Chairman and Members respectively was not a violation of the provisions of Sections 199 and 201 of the 1999 Constitution of Nigeria and thereby ultra vires and null and void.
(5)Whether the radio announcement by Defendants on 22/10/2010 dissolving all Commissions, Boards and Parastatals in Ekiti State is not ultra vires, null and void in so far as it relates to the E.S.I.E.C..
WHEREOF. Appellants as Plaintiffs, sought the following reliefs –
(1)A DECLARATION that the purported dissolution of the E.S.I.E.C.. and termination of the Plaintiffs’ appointment as Chairman and Members of the Commission by the Defendants alongside all other Commissions, Boards and Parastatals vide a radio announcement on Friday. 22/10/2010. is unlawful, wrongful, illegal unconstitutional ultra vires, null and void against the rules of natural justice and of no effect whatsoever
(2)AN ORDER setting aside the purported dissolution of the E.S.I.E.C.
(3)AN ORDER of injunction restraining the Defendants from dissolving the ESJEC, or terminating the appointments of the Plaintiffs as Chairman and Members respectively of the E.S.I.E.C. until the end of their 5-year tenure as guaranteed by the 1999 Constitution except (sic) in the Federal Republic of Nigeria otherwise in accordance with the provisions of the Constitution.
(4)AN ORDER re-instating the Plaintiffs as Chairman and Members of the E.S.I.E.C. forthwith
The Respondents, as Defendants, filed two Notices of Preliminary Objection and a Counter Affidavit in opposition. In his Judgment
delivered on 14/6/2012. the learned trial Judge. J. O. Adeyeye. J., overruled the Respondents’ Objections and concluded as follows:
The appointment of the Plaintiffs is one with statutory flavor as the conditions of appointment and procedure for their removal are clearly stated in the Constitution. Having said that the phrase contained in the letters of appointment –is of no legal consequence and that the inclusion of the phrase “at the pleasure of the Governor” did not deprive them of the legal right under the Constitution I hold the view that the appointment of the Plaintiffs falls within the purview of statutory appointments guided and regulated by the provisions of Sections 197,198,199and 201 of the 1999Constitution. The Respondents appealed. In allowing the Appeal, the Court of Appeal stated as follows in its Judgment delivered on 26/3/2013 –
It must not be forgotten that the appointments were made at the pleasure of the Governor who appointed them. They are bound to swim or sink together. You cannot put something on nothing and expect it stay there. It will collapse.
In the Court of Appeal’s view, the Appellants herein were not “independently elected into office like legislators at the Federal and State levels or Councilors at the Local Government level. The appointment of [Appellants herein] was. therefore, inextricably tied to the subsistence of the administration of the Appointor”.
The Appellants, dissatisfied with Court of Appeal’s decision, appealed to this Court with a Notice of Appeal that contains four Grounds of Appeal. They distilled four Issues for determination:
i. Whether the Lower Court was not wrong in holding that the appointment of the Appellants lacked statutory flavor in the light of the facts and circumstances of this case.
ii. Whether Appellants can be removed from office by Respondents before the expiration of the five years tenure provided for them by the 1999 CFRN except and in accordance with the relevant provisions of the said 1999 CFRN and whether the Appellants were not entitled to continue in office by virtue of the provisions of the CFRN 1999 (as amended), notwithstanding the nullification of the election of the Governor who appointed them into office
iii Whether the Lower Court was not wrong in holding that the Appellants ‘appointment was in issue at the trial Court when the claim of the Appellants was strictly on the unconstitutionality of their summary removal from office,
iv. Whether the Lower Court was not wrong in its refusal/failure to follow and apply the decision in Appeal No: CA/AE/2/2011: EKITI STATE & AN0R V FEMI AKINYEMI & ORS cited before it the facts and circumstances of which are similar to those in this Appeal.
The Respondents also formulated four Issues for Determination:
1.Whether the lower Court was wrong in holding that the Appellants’ appointments did not enjoy statutory flavour, and thereupon gave Judgment to the Respondents in the light of the facts and circumstances of this case
2.Whether the Appellants were not disentitled to continue in office after the judicial nullification of the election of the Governor who appointed them into office as to warrant their removal from office.
3.Whether the lower Court was right in holding that the appointments of the Appellants were in issue in this case in resolving the issue of constitutionality of the Appellants appointment.
4.Whether the decision in Appeal No. CA/AE/2/2011; Ekiti State & Anor V. Femi Akinyemi & Ors, is applicable to the case of the Appellants
The Parties’ Issue 1 raise the same question – that is whether the appointments are statutory appointments in the eyes of the law; in view of the clause in the Appellants’ letters of appointment that the said appointment is at the pleasure of the Governor please.
This, in my view, is the key issue that would set the tone for the determination of any other Issue, and it must be resolved first.
As far as the Issue is concerned, the Appellants argued that their appointments are statutory and governed by the provisions of Sections 199 and 201 of the 1999 Constitution (as amended), which are superior to, and overrule their letters of appointment; and that their tenure as Chairman and Members of the E.S.I.E.C…
are not tied to the tenure of the Governor, who appointed them. They cited the following authorities on the position of the law –
-Oloruntoba-Oju V. Abdul-Raheem (2006) 13NWLR (Pt. 1157)83;
-Olaniyan V. University of Lagos (1985)2NWLR (Pt 2)599 @ 602;
-Bamigboye V. University of Lagos (1999) 10NWLR (PT622) 290 @346;
-UMTH Management Board V Dawa (2001) 16 NWLR (Pt. 739)424;
-P.H.C.N. Plc. V. Offoelo (2013) 4 NWLR (Pt. 1344)380(3)408;
-Obeta V. Okpe (1996) 9 NWLR (Pt. 473) 401;
-Fed. Medical Centre Ido-Ekiti. Alabi (2012) 2 NWLR (Pt. 1285)438;
-C.O.E. Ekiadolor V. Osayande (2010) 6 NWLR (Pt 1191) 423 @ 450-451;
-Fakuade V. OAUTH C.M.B. (1993) 5 NWLR (PT 291) 47 @ 63
They submitted that the Court of Appeals conclusion fell far short of its “careful examination” of the letters of appointment because Respondents cannot back out from the relationship on political grounds without complying with Sections 199 (1) and 201 (1) & (2) of the Constitution, citing AG. Nasarawa State V AG, Plateau State (2012) 10 NWLR (Pt 1309) 414; and that they could only be removed
upon a resolution of the State House of Assembly, supported by two thirds majority of the House of Assembly on two Grounds –
i. Inability to discharge the functions of their office arising from infirmity of mind or body or any other cause; or ii. For misconduct.
That this procedure was not followed before they were removed from office by the Respondents, more so, when the Constitution guarantees the right to fair hearing to them in the determination of their rights and obligations – Section 36 of the Constitution; and that they were never accused of committing acts of misconduct, etc.. to warrant their removal so the lower Court seriously erred when it held that their appointments did not enjoy statutory flavor.
They cited Governor of Ekiti State & Anor V. Chief George Ojo & Ors (2006) 17 NWLR (PT1007) 105, a Court of Appeal decision, which they said was affirmed by this Court, and argued as follows:
More damnable to the Respondents’ case is that they submitted to Judgment in an Appeal in this Court, which was similar in facts and circumstances in all material particulars to the case in hand See Governor of Ekiti State & Anor. V Chief Femi Akinyemi & Ors. (unreported Appeal No: SC/425/2011 delivered on 26/4/2014 That Judgment – – has knocked the bottom completely off the Respondents case in this Appeal
The Respondents’ position is that the said appointments were not made in line with provisions of the Constitution. They argued that:
The appointments are by their letters said to be graciously approved “at the pleasure of the Governor. These highlighted words lend credence to the position of the Respondents that the appointments of the Appellants were not made under the Law. Indeed, the usage of the word ‘graciously underscore the fact that the appointments of the Appellants were not made under the Law. An appointment under the law could not have been “graciously approved rather, the use of the word “graciously is in tandem with the statement that the appointments of the Appellants were at the pleasure of the Governor.
They further argued that such appointments must be ratified by the State House of Assembly but the Appellants neither deposed to such fact in their Affidavit nor did they exhibit any material(s) to substantiate such ratification; and that failure to exhibit a copy of the Resolution of the State House of Assembly, as prescribed by the Constitution is fatal and has put paid to their case ab initio.
They submitted that a Party must show that the Law applies to his situation, citing idoniboye-Obe V. NNPC (2003)2 NWLR (Pt. 805) 589. Fakuade V. OAUTH C.M.B. (supra);that the said letters of appointment represent the contract between them and the Court has no business rewriting same or importing thereto extraneous terms, citing Evbuomwan V. Elema (1994) 7-8 SCNJ 243. Race Auto Supply Co. Ltd. (sic) (2006) ALL FWLR (Pt 327) 486 and that it is trite that extraneous evidence is not admissible to vary, add to or alter contents of a document citing Section 128 of the Evidence Act. UBA V. Ozigi (1994) 3 NWLR (Pt. 333) 385, Ibuluya V. Dikibo (1976) All NLR 316. Olaloye V. Balogun (1990) 5NWLR (Pt 148)24.
As to the decision in Governor of Ekiti State V. Akinyemi & Ors. (supra), which the Appellants cited in support of their position, the Respondents argued that it cannot be relied upon in the light of the decisions of this Court in Idoniboye-Obe V. NNPC (supra), Fakuade V. OAUTH C.M.B. (supra), and Olaniyan & Ors V. University of Lagos (1985) All NLR 363; and citing Odi V. Osafile (1985) 1 NWLR (Pt 1) 17, they urged this Court to depart, in this case, from the decision in Governor, Ekiti State V. Akinyemi (supra), as the failure to do so would translate to perpetuation of injustice.
The Appellants, however submitted in their Reply Brief that the issue relating to the said clause in their letter of appointment [graciously at the pleasure of the Governor), has been settled in Olufeagba V Abdul-Raheem (2009) 18 NWLR (PT 1173) 394 @ 453.
They further argued that the call by the Respondents not to rely upon Governor, Ekiti State V. Akinyemi & Ors (supra), is totally uncalled for; that they have not given any reasons why this Court should depart from the decision in that case; that for the Court to overrule itself or set aside its earlier decision, the Applicant must prove or show that the decision was obtained by fraud, or against principles of law or without jurisdiction or inimical to justice and the advancement of Law; and that Respondents have not shown any of these, citing Obiuweubi V CBN (2011) 7 NWLR (Pt. 1247)465, Adedayo V PDP (2013) 17 NWLR (Pt. 1382) 1. This Court was urged to apply the decision in Akinyemi’s Case (supra) to this Appeal.
I will quickly say that the impression given by the Appellants that the issue at stake in the Appeal has been settled by this Court in the cases cited, is not so cut and dried, because the cases cited do not qualify as authorities, in the sense of the word “precedent.
The trial Court relied upon the decision of the Court of Appeal in Governor of Ekiti State V. Akinyemi & Ors (supra), as follows –
The inclusion of the words “graciously approved” and “at the pleasure of the Governor” in the Respondents letters of appointment does not change the nature of their appointments made pursuant to the provision of the Local Government Service Commission Law No. 2 of 2000. The phrase “graciously approved” and “at the pleasure of the Governor” does not in the circumstances make the Respondents servants of Appellants that they can dismiss at their pleasure, it is, therefore, worthless and of no any legal consequence whatsoever.
However, the Court of Appeal had a contrary view, and held that –
The case of Governor of Ekiti State V. Akinyemi (supra), is in my view not relevant because the circumstances surrounding that case is different from this case under consideration. The appointment made by the Governor in that case was made pursuant to Local Government Service Commission Law No. 2 2000. Therefore, the lower Court was wrong in holding that the appointments of the Respondents were not in issue.
In the Brief of Argument filed in this Court, the Appellants quoted a passage from the Judgment of the Court of Appeal in Governor of Ekiti State V. Chief George Ojo (supra), and added as follows –
That Judgment was affirmed by your Lordships in this Apex Court. They also referred this Court to “Governor of Ekiti State & Anor V. Chief Femi Akinyemi & Ors. (unreported Appeal No: SC/425/2011) delivered on which they submitted had “knocked the bottom completely off the Respondents case in this Appeal’.
It is an elementary principle, very elementary, that Counsel, who want the Court to make use of the authorities cited in Court, must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported,
Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon – see Chidoka & Anor V. First City Finance Co. Ltd. (2013) 5 NWLR (Pt. 1346) 144 and Ugo-Ngadi V. FRN (2018) LPELR-43903 (SC) wherein Galumje, JSC, stated –
Where counsel cites a case that has not been reported he owes the Court a duty to produce a copy of the Judgment if he wants the Court to rely on such authority. Where copies of the Judgment are not produced, the Court will have nothing to rely upon.
In this case, the Appellants did not provide this Court with copies of its Judgment in Governor, Ekiti State V. Chief George Ojo & Ors, and Governor of Ekiti State & Anor. V. Chief Femi Akinyemi & Ors. They merely quoted what the Court of Appeal said in those cases, and there is nothing to indicate what principle this Court affirmed.
As Oputa, JSC, so aptly observed in Fawehinmi V. NBA (No.2) (1989)2 NWLR (Pt. 105) 558. it is good to call the Court’s attention to its pronouncements in a previous case, but the facts of the case must be the same or similar before a decision in one can be used, and even at that, used as “a guide to the decision in another case’. Clearly, the issue of whether this Court should apply or set aside its decision in Akinyemi’s Case, is a moot point in this Appeal.
The Appellants also submitted in their Reply Brief that with regards to the clause in their letter of appointment, this Court had “put paid to this issue in Olufeagba V. Abdul-Raheem (supra), and they quoted the statement of Ogbuagu, JSC, therein, as follows –
I entirely agree. In the circumstances, the Respondents will not be allowed by me or the Court to ignore with impunity the Law or Act that created them and purport to hide behind the letters of appointment of the Appellants. Contrary to the clear and unambiguous provisions of Section 15 of the Act.
I have read the Judgment in Olufeagba V. Abdul-Raheem (supra). and the Appellants clearly quoted the statement of Ogbuagu, JSC,
therein out of context. Yes, that case deals with the termination of appointments with statutory flavor but the issue of appointments being “at the pleasure of the Governor”, did not arise in that case. It is one thing to cite an authority, and another thing to apply it to a case since a decision is only an authority for what it decides; nothing more, and each case is considered on its particular facts
– see Skye Bank & Anor. V. Akinpelu (2010) 9 NWLR (Pt. 1198) 179 and Adegoke Motors Ltd. V. Adesanya (1989) 3 NWLR (Pt. 109) 250 wherein Oputa. JSC, made the distinction very clear, as follows –
There is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. It ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced then wilt be citing them out of their proper context for without facts, it is impossible to know the law on those facts.
In Olufeagba V. Abdul-Raheem (supra), one of the issues settled was whether the “cessation of appointments to the Appellants, was based on allegation of misconduct. Ogbuagu, JSC, noted that:
The appointment of Appellants has statutory flavor i.e. it is protected by statute. I even note that in their Amended Reply to the Statement of Defence – – they averred and in evidence – – they testified that the Respondents prevented the Appellants from entering any of the campuses of the University since April 2001. This evidence, was not challenged by the Respondents. In Bamgboye V. Unilorin (supra), Onu JSC, stated inter alia as follows –
“Section 15 of University of ilorin Act confers on the University staff a “special status” over and above the normal contractual relationship of master and servant. Consequently the only way to terminate such a contract of service with “statutory flavor” is to adhere strictly to the procedure laid down in the statute i.e. in the case at hand, the University of ilorin Act”.
I entirely agree. In the circumstances, the Respondents will not be allowed by me or the Court to ignore with impunity the Law or Act that created them and purport to hide behind the letters of appointment of the Appellants Contrary to the clear and unambiguous provisions of Section 15 of the Act
Evidently, the Appellants focused on what Ogbuagu, JSC. stated in the last paragraph, without looking at the total picture of the case. It is the facts of any particular case that will frame the Issues for decision and the facts of two cases must be the same or at least.
similar before the decision in one case can be used as a guide to the decision of another case – Fawehinmi V. NBA (No.2) (supra).
In effect, the facts and circumstances of a case determines authorities counsel should cite to support his argument in Court, and the whole purpose of citing a case is for the law on the subject to become known – see Izeze V. INEC (2018)LPELR-44284(SC)
Be that as it may. this Court may not have resolved the Issue at stake in this Appeal in Olufeagba V. Abdul-Raheem (supra) but “the position of the law on statutory appointments shines through;
that is that an appointment has statutory flavor if it is protected by statute and the only way to terminate such an appointment with statutory flavor is to adhere strictly to the procedure laid down in the Statute. See also Oloruntoba-Oju V. Abdul-Raheem (supra), Bamigboye V. University of Lagos (supra), and Fakuade V. OAUTH Complex Management Board (supra), all cited by the Appellants.
In this case, the appointment and removal from office of the Chairman/Members of the E.S.I.E.C. is as stated in Sections 198-201 of the 1999 Constitution (as amended). Section 198 provides –
Except in the case of ex-officio members or where other pro visions are made in this Constitution, the Chairman and Members of any of the bodies (such as the E.S.I.E.C.) so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State, and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.
And Section 201 of the same Constitution further provides that –
(1) Any person holding any of the offices to which this Section applies shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
(2) This Section applies to the offices of the Chairman and Members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.
So far so good, the appointment of Chairman and Members of the
State Independent Electoral Commission, established by Section 197 of the 1999 Constitution (as amended), is governed by statute, and any such appointments can be said to have statutory flavor.
The question in this case is whether the appointments of the Appellants as Chairman and Members of E.S.I.E.C. respectively, was done by the said Governor in line with the set-out procedure, and a corollary question is – who has the burden of proving same?
The Respondents put the burden squarely on the Appellants because, as they submitted, the Appellants’ claims are predicated principally on declaratory relief, therefore, they had to establish that the appointments were made as statutorily stipulated before they could enjoy the benefits conferred by the Statute in question, citing idoniboye-Obe V. NNPC (supra), Fakuade V. OAUTH C.M.B. (supra)and Alao V. Akano (2005) 11 NWLR (Pt. 935) 160 at 173 SC. wherein this Court’per Musdapher. JSC. (as he then was) stated –
The claims of the Appellant before the trial Court were essentially declaratory, hence the duty was on him to succeed on the strength of his own case and not on the weakness of the Defendant’s case – Owodade V. Omitota (1988) 2 NWLR (Pt 77,) 413; Ndayako V. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214. A declaratory Judgment is also discretionary, it is the form of Judgment which should be granted only in circumstances in which the Court is of the opinion that the Party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Court’s discretion in his favour – Egbunike V.Mounweokwu(1962 All NLR46. A Plaintiff, who seeks a declaratory relief, must show that he has an interest or right which forms the foundation for that right The Plaintiff must establish a right in relation to which the declaration can be made.
The legal burden on the Plaintiff to plead and prove his claims for declaratory reliefs, on the evidence called by him, without relying on the evidence called by the Defendant is well-settled – see A.G., Rivers State V. AG., Bayelsa State & Anor (2012) LPELR-9336(SC) and Dumez (Nig.) Ltd. V. Nwakhoba (2008) 18 NWLR (Pt 1119)361 where this Court per Mohammed. JSC (as he then was) observed:
The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where Plaintiff fails to establish his entitlement to the declaration by his own evidence.
That is the position of the law and that is the clincher that seals the Respondents’ position that the Appellants failed to establish that the said appointments as Chairman and Members respectively of the E.I.E.S.C. were made in compliance with the 1999 Constitution.
The first relief sought by the Appellants at the trial Court was for:
A DECLARATION that the purported dissolution of the E.S.I.E.C. and termination of [their] appointment as Chairman and Members of the [E.S.I.E.C] by [Respondents] alongside other Commissions. Boards and Parastatals vide a radio announcement on Friday 22/10/2010. is unlawful wrongful illegal unconstitutional ultra vires, null and void against the rules of natural justice and of no effect whatsoever.
They instituted a declaratory action, and had the onus to establish that the said appointments approved by the then State Governor, were confirmed” by a resolution “of the State House of Assembly, as stipulated in Section 198 of the 1999 Constitution (as amended). The Respondents are right, they failed to discharge the burden of establishing that they are entitled to the declaratory relief sought.
There is no evidence or material provided by the Appellants to show that their appointments were subsequently confirmed by a Resolution of the Ekiti State House of Assembly. So as couched the letters of appointment conveyed exactly what was said there – that their appointments were “at the pleasure of the Governor, therefore, they served at his pleasure for as long as he is pleased.
The term “at the pleasure of the Governor” is an offshoot of the phrase’ at her Majesty’s pleasure, which is a legal term of art, referring to the indeterminate or undetermined length of service of certain appointed officials or the indeterminate sentences of some Prisoners at the Queen’s pleasure, or when applicable at
” His Majesty’s pleasure or King’s pleasure and the said term is based on the concept that all legitimate authority for government comes from “the Crown. Originating from the United Kingdom, the said term is now used throughout the Commonwealth realms, wherein the phrase is modified to be “at the Governor’s pleasure .
Be that as it may, given the letters of appointment issued to Appellants in this case, wherein they were specifically informed that – “The appointment is at the pleasure of the Governor please” , two questions arise in this Appeal. Firstly, did the said Governor act within his mandate when he “graciously approved” the said appointments at his “pleasure. Secondly, and more importantly, can the Appellants be said to have been validly appointed by the Governor in terms of the said appointment letters, as worded?
As I pointed out earlier, the said Offices into which they were appointed are Offices regulated by Section 198 of the Constitution, which deals with the appointment of Chairman and members of State Commissions/ Bodies, established pursuant to Section 197, and they include the E.S.I.E.C. The said Section 198 provides that –
Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.
From this provision, it is clear that the appointment of a Chairman and Members of the said E.S.I.E.C. is subject to confirmation by a resolution of the House of Assembly. This means that there can be no valid appointment unless the said confirmation by a resolution of the Ekiti State House of Assembly is first sought and received.
Did the said Governor appoint the Appellants under the said Section 198 of the Constitution? This question cannot be answered without examining the Instrument i.e. the letters of appointments, through which they were appointed. The said letters clearly show that the Governor had appointed the Appellants “at his pleasure”. A look at the said Section 198 shows that no words are used
to suggest that the Governor can appoint them “at his pleasure”. The Office of the Governor itself is a creation of the Constitution, and like all such offices created, administrative law teaches that they act ultra vires once they act outside of their mandate/remit.
One of the maxims of statutory interpretation is expressio unius est exclusio [express mention of one thing excludes others] i.e. although there is no express exclusion “exclusion is implied. An implied exclusion argument lies whenever there is reason to believe that if the Legislature meant to include a particular thing within the ambit of a statute, it would have referred to that thing and because of this expectation, its failure to mention that thing becomes grounds for inferring that it was deliberately excluded.
Simply put, the express mention of one thing in any statutory provision automatically excludes any other, which otherwise, would have applied by implication with regard to the same issue –
see Ehuwa V. O.S.I.E.C. (2006) 18 NWLR (Pt 1012) 544 at 569 SC, Udoh V. O. H. M. B. (1993) 7 NWLR (PL 304) 739 SC and Att-Gen.. Ondo State V. Att.-Gen., Ekiti State, (2001) 17 NWLR (Pt 743) 707,
It is also a basic principle that documents and statutes are to be interpreted holistically. As my learned brother Nweze, JSC. puts it in Dr Olubukola A. Saraki v. FRN [2016] LPELR-40013(SC):
The construction of any document (and this includes the construction of the precious and organic document known as the 1999 Constitution) is a holistic endeavour.
Applying these principles vis-a-vis the issue at stake in this case, a look at the 1999 Constitution (as amended) shows that it is only in Sections 171 and 208 of the said Constitution that very specific provisions are made permitting the President and the Governor of a State to make appointments at their respective pleasure.
Section 171(6) of the Constitution gives the President power to appoint the Secretary of the Government of the Federation and “any office on the personal staff of the President at his pleasure. Section 208(5), which confers same power on a Governor, says:
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: Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office,
Offices mentioned in subsection (2)(a) and (d) of Section 208 are:
(a) Secretary to the Government of the State;
(d) Any office on the personal staff of the Governor
Since the 1999 Constitution makes these specific provisions as to when the President and the Governor can make appointments at their pleasure, it cannot be that the intention of the framers of the Constitution is to allow the appointments under Section 198 to be at their pleasure, and it follows that the Appellants’ appointments by the said Governor was made ultra vires. So, it is null and void.
It is settled that for artificial entities, including governmental offices (and the Governor in this case), the rule is that all acts are prohibited except specifically permitted. Thus, in appointing the Appellants into the offices regulated by the said Section 198 of the Construction ” at his pleasure . the Governor went outside of his mandate and acted ultra vires This being so. the Governor did not act lawfully as to bestow on the Appellants any valid appointment.
The Appellants cannot claim to have been validly appointed as to seek the reliefs they presently seek. The said Governor had no authority to appoint the Appellants into the offices covered by Section 198 of the 1999 Constitution. Section 198 requires that the “appointment shall be subject to confirmation by a resolution of the House of Assembly of the State. The confirmation of their appointments by a resolution of the Ekiti State House of Assembly is a condition precedent for the validity of the said appointments; since this condition was not met, their appointments were invalid.
The necessity by all to abide by the constitutional dictates of the 1999 Constitution is something that this Court has impressed on all since the turn of the present democratic dispensation. See Eze & ors v. Governor of Abia State & ors [2014] LPELR-23276(SC), wherein this Court frowned at the undemocratic dissolution of the democratically elected Local Government Councils and held that Caretaker Committees are unknown to our laws, and are illegal.
In this case, the Appellants have no legs to stand as the said Governor acted beyond his powers in making their appointments “at his pleasure, and so. the said appointments are null and void.
The end result is that this Appeal lacks merit. It is dismissed. The Parties are to bear their own costs.
CHIMA CENTUS NWEZE, JSC: My Lord, Augie, JSC, obliged me with the draft of the leading judgement just delivered. I endorse the reasoning and conclusion that this appeal is devoid of merit.
Section 208 of the Constitution is a provision which vests a Governor with the power to appoint a host of officers into the offices enumerated in paragraphs (a) – (d) of subsection (2) of the said section. Such offices are held on the conditions that they shall be “at the pleasure of the Governor” and shall cease when the Governor ceases to hold office.
The draftsperson of the Constitution opted for the term “at the Governor’s pleasure:” a term of art which historically was based on the concept that all legitimate authority for government came from the English Crown and, hence, their length of service was indeterminate or undetermined. Perhaps, realising this quaint irony under a written Constitution, the length of service of such offices was made to cease when the Governor ceases to hold office. As shown
above, the offices that fall into the above category are those enumerated in Section 208 (2) (a) – (d).
In this appeal, the offices in question were the offices of Chairman and members of State Independent Electoral Commission: a State Commission whose establishment is guaranteed under Section 197 (1) of the Constitution. The first paragraph of the appellants’ letters of appointment were couched thus:
I am pleased to inform you that the Governor of Ekiti State, Engr. Olusegun Oni, has graciously approved your appointment as Full-time [Chairman/Member] State Independent Electoral Commission with effect from 8/10/2008, The appointment is at the pleasure of the Governor, please.
[Italics supplied for emphasis]
Quite apart from the inexcusable error in purporting to appoint persons to a State Commission “at the pleasure of the Governor,” it is obvious that the author of those letters underrated the grammar of the statutory language deployed in section 198 (supra). The section provides that:
Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State.
[Italics for emphasis]
The implication of section 198 (supra) is that, although the Governor has the power to appoint suitable persons to the positions of Chairman and Members, respectively, of any of the executive bodies in question; such appointments
would remain inoperative until they are confirmed by a resolution of the House. In other words, the said appointments would remain inchoate until they receive the imprimatur of the House.
The phrase “subject to” is always employed when the draftsman intends that certain provisions shall be conditional upon compliance with certain requirements in the provision referred to. In the context of section 198, the phrase “and the appointment shall be subject to the confirmation by a resolution of the House of Assembly of the State” is intended to subordinate the Governor’s power of appointment to confirmation of the House.
In other words, the endorsement of the House, by way of confirmation by a resolution, is a pre-condition to effectuating the Governor’s appointment. The above phrase, “subject to,” has received so much judicial
elucidation that its meaning can no longer be twisted by any form of verbal gymnastics, Idehen v Idehen [1991] 6 NWLR (pt 198) 382, 418; Olowu v Olowu [1995] 3 NWLR (pt 13) 372; Tukur v Governor of Gongola State [1984] 4 NWLR (pt 117) 517; Olatunbosun v NISER [1998] 3 NWLR (pt 80) 25; Aqua Ltd v Ondo State Sports Council [1988] 4 NWLR(pt 91) 622.
In effect, the requirement of the confirmation by the State House of Assembly is a hurdle, deliberately, erected by the Constitution to ensure checks and balances.
In this instance, it is intended to afford the said House the opportunity of scrutinizing the Governor’s nominees with a view to ensuring that persons so appointed are eligible to occupy the designated positions.
The said appointments of the appellants in this appeal, not having received the “confirmation by a resolution of the [Ekiti] House of Assembly,” remained inchoate. . Just like other inchoate agreements, which have not gone beyond negotiation, cannot be enforced as concluded contracts, Scammell v. Ouston (1941) All ER 14; Courtney and Fairbaine Ltd. v. Tolaimi Brothers Hotels Ltd. and Anor (1975) 1 WLR 297; K. S. U. D. B. v Fanz Const Ltd [1990] 6 SC 103; (1990) LPELR 1659 (SC) 82; A-B, the appellants’ appointment vapourised with their “appointor.”
It is for these, and the more elaborate, reasons in the leading judgement that I too shall enter an order dismissing this appeal. Appeal dismissed.
SC. 622/2015
