Senator Abraham Ade Adesanya V. President Of The Federal Republic Of Nigeria & Anor. (1981)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, C.J.N.

The plaintiff, now appellant, is a member of the Senate of the National Assembly. The first defendant, now first respondent, is the President of the Federal Republic of Nigeria. Under the 1979 Constitution of Nigeria, the first defendant is empowered to appoint the Chairman of the Federal Electoral Commission, one of the bodies established under section 140 of the Constitution. In this connection, it is, I think, pertinent, at this stage, to refer to the provisions of section 141 subsections (1) and (3) of the said Constitution which read:

“(1) 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 President, and the appointment shall be subject to confirmation by the Senate.

(3) In exercising his powers to appoint a person as Chairman or member of the Federal Electoral Commission, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.”

From the above provisions, it is clear that not only must the President consult the Council of State (another body established under section 140) before making the “appointment” the “appointment” is also subject to confirmation of the Senate.

Be that as it may, the first defendant in the exercise of his power under section 141 subsection (1) of the Constitution “appointed” the second defendant (now second respondent) Chairman of the Federal Electoral Commission. According to paragraph 6 of the statement of claim, which the plaintiff filed in support of the claim made by him later:

“On the 17th July, 1980, the appointment of the second defendant by the first defendant was confirmed by the Senate.”

Being dissatisfied with the confirmation, the plaintiff commenced proceedings in the High Court of Lagos State wherein he claimed:

“1. A DECLARATION that the appointment of the 2nd defendant by the 1st defendant as a member and Chairman of the Federal Electoral Commission is unconstitutional, null and void in that at the time of his appointment by the 1st defendant, Hon. Mr Justice Ovie-Whiskey (the 2nd defendant) was the Chief Judge of Bendel State and is therefore disqualified from being appointed a member of the FEDERAL ELECTORAL COMMISSION.

2. AN INJUNCTION restraining the 1st defendant from swearing in or causing to be sworn in the 2nd defendant as a member and Chairman of the Federal Electoral Commission.
3. AN INJUNCTION restraining the 2nd defendant from acting or purporting to act as a member or as a Chairman of the Federal Electoral Commission.”

Paragraphs 3, 7, 8 and 9 of the plaintiff’s statement of claim read:

“3. On the 3rd of June, 1980, the 1st defendant appointed the 2nd defendant as Chairman of the Federal Electoral Commission.

During the proceedings preceding the approval of the 2nd defendant as member and Chairman of the Federal Electoral Commission in the Senate of the National Assembly, the plaintiff pointed out the unconstitutionality of the appointment of the 2nd defendant by the 1st defendant. The proceedings referred to in these paragraphs are contained in the Official Report Volume 5 No. 55 of the Senate dated Thursday, 17th July, 1980 and printed by Federal Government Printer.

8. At the time of the appointment of the 2nd defendant by the 1st defendant, the 2nd defendant was the Chief Judge of Bendel State of Nigeria, a post the 2nd defendant held under the public service of Bendel State of Nigeria. At the time of the confirmation of his appointment by the Senate on the 17th July, 1980, the 2nd defendant was still the Chief Judge of Bendel State-a member of the High Court of that State.”

It is pertinent, at this stage, to point out that none of the parties testified at the trial although some exhibits were tendered by consent.

After hearing the arguments put forward on behalf of each of the parties, the learned trial judge gave judgment on 15th August, 1980. He granted the declaration asked for and set aside the said appointment on the ground that it was unconstitutional and was therefore null and void. He however, refused the two injunctions which the plaintiff also claimed. Being dissatisfied with the judgment, the defendants appealed to the Federal Court of Appeal.