ONI & ORS v. GOVERNOR OF EKITI STATE &ANOR
CITATION: (2019) LPELR-46413(SC)
In the Supreme Court of Nigeria
ON FRIDAY, 18TH JANUARY, 2019Suit No: SC.622/2015
Before Their Lordships:
OLABODE RHODES-VIVOUR Justice of the Supreme CourtOLUKAYODE ARIWOOLA Justice of the Supreme CourtJOHN INYANG OKORO Justice of the Supreme CourtCHIMA CENTUS NWEZE Justice of the Supreme CourtAMINA ADAMU AUGIE Justice of the Supreme Court
Between1. MAJOR GENERAL KAYODE ONI (RTD)2. CHIEF (MRS.) TOLA AJAYI3. TAYO AWOPEJU4. SESAN AKINOLA5. ODUTOLA BABATUNDE
- Appellant(s)
And1. GOVERNOR OF EKITI STATE2. ATTORNEY GENERAL, EKITI STATE - Respondent(s)
RATIO DECIDENDI
(201
9) LP
ELR-46
413(
SC)
1. CASE LAW - FACTUAL DISTINCTIONS IN CASES: Attitude of the Supreme Court with regards to citing pronouncements from previous judgments withoutrelating them to the facts that induced them"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 socut 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 Courtof Appeal in Governor of Ekiti State V. Akinyemi & Ors (supra), as follows- The inclusion of the words "graciously approved" and ''at the pleasure of theGovernor" in the Respondents letters of appointment does not change the nature of their appointments made pursuant to the provision of the LocalGovernment Service Commission Law No. 2 of 2000. The phrase "graciously approved" and ''at the pleasure of the Governor" does not in the circumstancesmake 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 caseunder 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. ChiefGeorge 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 on26/4/2014" which they submitted had 'knocked the bottom completely off the Respondents case in this Appeal'. It is an elementary principle, very elementarythat Counsel, who wants the Court to make use of the authorities cited in Court, must provide the name of Parties, the year the case was decided, and wherethe 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 Galinje, JSC stated- Where counsel cites a case that has not beenreported, 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 notproduced, 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 inthose 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 adecision 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 submittedin 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 theCourt 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 clearand unambiguous provisions of Section 15 of the Act. I have read the Judgment in Olufeagba V. Abdul-Raheem (supra), and the Appellants clearly quoted thestatement of Ogbuagu JSC, therein out of context. Yes, that case deals with the termination of appointments with statutory flavor but the issue ofappointments 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 casesince 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 veryclear 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 Courtin unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. It ought to beobvious 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 ourJustices whether they are rationes decidendi or obiter dicta must, therefore, be inextricably and intimately related to the facts of the given case. Citing thosepronouncements without relating them to the facts that induced then will be citing them out of their proper context, for without facts, it is impossible to knowthe law on those facts. In Olufeagba V. Abdul-Raheem (supra), one of the issues settled was whether the "cessation of appointments" to the Appellants wasbased 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 - - theyaverred and in evidence - - they testified that the Respondents prevented the Appellants from entering any of the campuses of the university since April 2007.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 andservant. Consequently, the only way to terminate such a contract of service with "statutory flavor" is to adhere strictly to the procedure laid down in thestatute 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 andpurport to hide behind the letters of appointment of the Appellants. Contrary to the clear and unambiguous provisions of Section 15 of the Act. Evidently, theAppellants 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 casethat 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 guideto the decision of another case - Fawehinmi V. NBA (No. 2) (supra). In effect, the facts and circumstances of a case determines authorities counsel should citeto 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)."Per AUGIE, J.S.C. (Pp. 13-19, Paras. A-D) - read in context
(201
9) LP
ELR-46
413(
SC)
2. ELECTORAL MATTERS - STATE INDEPENDENT ELECTORAL COMMISSION: Procedure for appointment of Chairman and members of the StateIndependent Electoral Commission; Whether the appointment is at the pleasure of the Governor"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 Governorin 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 declaratoryrelief, therefore, they had to establish that the appointments were made as statutorily stipulated before they could enjoy the benefits conferred by the Statutein 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 thisCourt 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 noton the weakness of the Defendant's case - Owoade V Omitola (1988) 2 NWLR (Pt. 77) 413, Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187 at 214. Adeclaratory 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 thatthe Party seeking it, is, when all facts are taken into consideration, fully entitled to the exercise of the Courts discretion in his favour - Egbunike VMuonweokwu (1962) All NLR 46. 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 bythe Defendant is well-settled- see A.G., Rivers State V. A.G., 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 reliefsare 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 asChairman 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 trialCourt 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, illegalunconstitutional, 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 aresolution" of the State House of Assembly, as stipulated in Section 198 of the 1999 Constitution (as amended). The Respondents are right, they failed todischarge 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 StateHouse of Assembly. So as couched, the letters of appointment conveyed exactly what was said there - that their appointments were "at the pleasure of theGovernor", 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 herMajesty's pleasure", which is a Legal term of art, referring to the indeterminate or undetermined length of service of certain appointed officials or theindeterminate sentences of some Prisoners at the Queen's pleasure, or when applicable at "His Majesty's' pleasure or Kings pleasure" and the said term isbased on the concept that all legitimate authority for government comes from "the Crown". Originating from the United Kingdom, the said term is now usedthroughout the Common Wealth, realms, wherein the phrase is modified to be "at the Governors' pleasure". Be that as it may, given the letters ofappointment issued to Appellants in this case, wherein they were specifically informed that - "The appointment is at the pleasure of the Governor please", twoquestions 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, asworded?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 theappointment of Chairman and members of State Commissions/Bodies, established pursuant to Section 197, and they include the E.S.I.E.C The said Section198 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 soestablished shall, subject to the provisions of this Constitution be appointed by the Governor of the State and the appointment shall be subject to confirmationby 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 ofAssembly. 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 soughtand received.Did the said Governor appoint the Appellants under the said Section 198 of the Constitution? This question cannot be answered without examining theInstrument 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 itselfis a creation of the Constitution, and like all such offices created, administrative law teaches that they act ultra vires once they act outside of theirmandate/remit.One of the maxims of statutory interpretation is expression unius est exclusion (express mention of one thing excludes others] i.e. although there is noexpress exclusion, exclusion is implied. An implied exclusion argument lies whenever there is reason to believe that if the Legislature meant to include aparticular 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 becomesgrounds 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 implicationwith 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 (Pt 304) 139 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 interpretedholistically. 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 holisticendeavour.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 ofthe said Constitution that very specific provisions are made permitting the President and the Governor of a State to make appointments at their respectivepleasure.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 personalstaff 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 theGovernor 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 theFederation 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 bethat 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 specificallypermitted. Thus, in appointing the Appellants into the offices regulated by the said Section 198 of the Constitution "at his pleasure", the Governor wentoutside 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 theAppellants into the offices covered by Section 198 of the 1999 Constitution. Section 198 requires that the "appointment shall be subject to confirmation by aresolution 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 conditionprecedent 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 thepresent democratic dispensation. See Eze & Ors v. Governor of Abia State & Ors [2014] LPELR-23276(SC), wherein this Court frowned at the undemocraticdissolution 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 thesaid appointments are null and void."Per AUGIE, J.S.C. (Pp. 21-31, Paras. C-A) - read in context
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3. ELECTORAL MATTERS - STATE INDEPENDENT ELECTORAL COMMISSION: Procedure for appointment of Chairman and members of the StateIndependent Electoral Commission; Whether the appointment is at the pleasure of the Governor"Section 197 (1) of the Constitution states that:197(1). There shall be established for each state of the Federation the following bodies namely;(a) State Civil Service Commission;(b) State Independent Electoral Commission;and(c) State Judicial Service Commission.While Section 198 of the Constitution states that-198. Except in the case of ex-officio members or where other provisions are made in this Constitution, the chairmen and members of any of the bodies soestablished shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject toconfirmation by a resolution of the House of Assembly of the State. By a letter dated 10th October, 2016, the appellants were appointed full-time Chairmanand Members of the Ekiti State Independent Electoral Commission (i.e) in Section 197(1) of the Constitution.)Their letter of appointment reads:"I am pleased to inform you that the Governor of Ekiti State Engr. Olusegun Adebayo Oni, has graciously approved your appointment as full-timeChairman/member State Independent Electoral Commission with effect from 8 October, 2008. The appointment is at the pleasure of the Governor please." On22 October, 2010 the new Governor of Ekiti State Dr. Kayode Fayemi dissolved the State Independent Electoral Commission. The appellants were furious andsought redress in Court. Do they have a case? They clearly do not have a case. In the appointment of the appellants there was non-compliance with theprovisions of Section 198 of the Constitution which clearly stipulates that the appointment of the appellants by the Governor shall be subject to confirmationby resolution of the House of Assembly of the State. Since the appellants appointment was never confirmed by the House of Assembly their appointment wasclearly at the pleasure of the Governor, a nullity. Any person that accepts appointment at the pleasure of a Governor can also be removed at the pleasure ofthe Governor. The appellants were rightly removed by the Governor. Once again since there was non-compliance with the provisions of Section 198 of theConstitution, the appointment of the appellants was fundamentally defective.There can be no redress for the appellants when their appointment was at the pleasure of the Governor and in clear violation of Section 198 of theConstitution.Furthermore, and finally the appointment of the appellants was null and void for non-compliance with Section 198 of the Constitution."Per RHODES-VIVOUR,J.S.C. (Pp. 31-33, Paras. C-D) - read in context
4. ELECTORAL MATTERS - STATE INDEPENDENT ELECTORAL COMMISSION: Procedure for appointment of Chairman and members of the StateIndependent Electoral Commission; Whether the appointment is at the pleasure of the Governor"I shall commence by reproducing the provisions of Sections 198 and 201 of the 1999 Constitutions relied upon by the appellants as follows:Section 198:"Except in the case of ex - officio members or where other provision are made in this Constitution, chairman and members of any of the bodies so establishedshall, subject to the provisions of the Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by aresolution of the House of Assembly of the State.''Section 201:''(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 anaddress supported by two third majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of theoffice (whether arising from infirmity of mind or body or any other cause) or for misconduct.2. This section applies to the office of the chairman and members of the State Civil Service Commission, the State Independent Electoral Commission and theState Judicial Service Commission."The tenure of office of the chairman and members of the State Independent Electoral Commission appointed by the State Governor under the aforecitedSections of the 1999 CFRN had been settled by this Court in the case of The Governor of Kwara State v. Ojibara {2006) 18 NWLR (PT. 1012) 545 where thisCourt, per Oguntade, JSC [as he then was) held as follows:"The tenure of the Governor of a State under 1999 Constitution as well as that of the State legislature is four years. The Constitution however, grants themembers of a State Independent Electoral Commission, a tenure of five years. It ought not to escape attention that the deliberate purpose of the Constitutionis to create an Electoral Commission, the lifespan of which exceeds those of both the Governor and the State Legislature. This is done with the view to createcontinuity and stability in the electoral process and governance. The same is done in relation to the State Civil Service Commission and the State JudicialService Commission. It is not the intendment of the Constitution that the membership of those Commissions should change with the fortunes of the politicalparties in a State."That is the law and I cannot add to it or subtract from it in determining this appeal. However, the question agitating my mind is whether the appointments ofthe Appellants met the requirements of Section 198 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It must not be lost that theirappointments were at the pleasure of the Governor, who appointed them and there is no record that their appointments were confirmed by a resolution of theHouse of Assembly of the State as required under Section 198 of the Constitution. I dare say that the appointments of the appellants were not governed bythe provision of Section 198 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the same vein, their removal cannot be subjected tothe provision of Section 201 of the Constitution."Per OKORO, J.S.C. (Pp. 35-37, Paras. A-F) - read in context
5. ELECTORAL MATTERS - STATE INDEPENDENT ELECTORAL COMMISSION: Procedure for appointment of Chairman and members of the StateIndependent Electoral Commission; Whether the appointment is at the pleasure of the Governor"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 whenthe Governor ceases to hold office. The drafts person of the Constitution opted for the term "at the Governor's pleasure:" a term of art which historically wasbased on the concept that all legitimate authority for government came from the English Crown and, hence, their length of service was indeterminate orundetermined. Perhaps, realizing this quaint irony under a written Constitution, the length of service of such offices was made to cease when the Governorceases 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 whoseestablishment 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 authorof 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 soestablished shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to theconfirmation 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. Inother 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 certainrequirements in the provision referred to. In the context of Section 198, the phrase "and the appointment shall be subject to the confirmation by a resolutionof the House of Assembly of the State" is intended to subordinate the Governor's power of appointment to the confirmation of the House. In other words, theendorsement of the House, by way of confirmation by a resolution, is a pre-condition to effectuating the Governor's appointment. The above phrase, "subjectto," 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 [1985] 3 NWLR (pt.13) 372; Tukur v Governor of Gongola State [1989] 4 NWLR (pt. 117) 517; Olatunbosun v NISER [1988] 3NWLR (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 andbalances. 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 personsso 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," remainedinchoate. Just like other inchoate agreements, which have not gone beyond negotiation, cannot be enforced as concluded contracts, Scarnmell v. Ouston(1941) All ER 14; Courtney and Falrbaine 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 vaporized with their "appointor."Per NWEZE, J.S.C. (Pp. 38-42, Paras. C-B) - read in context
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6. LABOUR LAW - EMPLOYMENT WITH STATUTORY FLAVOUR: Whether the appointment of Chairman and members of a State Independent ElectoralCommission is one with statutory flavor"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 onstatutory appointments shines through, that is that an appointment has statutory flavor if it is protected by statute and the only way to terminate such anappointment with statutory flavor is to adhere strictly to the procedure laid down in the Statute. See also Oloruntoba-Oju V. Abdul-Raheem (supra) BamgboyeV. University of Ilorin (supra), and Fakuade V. OAUTH Complex Management Board (supra), all cited by the Appellants. In this case, the appointment andremoval 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 the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and Members of any of the bodies (such as theES.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 toconfirmation 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 anaddress 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 theoffice (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 andthe 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 1999Constitution (as amended), is governed by statute and any such appointments can be said to have statutory flavor."Per AUGIE, J.S.C. (Pp. 19-21, Paras. E-C) -read in context
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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading
Judgment): The Appellants were appointed full-time
Chairman and Members respectively of the Ekiti State
Independent Electoral Commission [E.S.l.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 Ful l - t ime
[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
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1.Whether the Plaintiffs, who are Chairman and Members
of the ESIEC 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
provisions 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.
2
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9) LP
ELR-46
413(
SC)
(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 ESIEC.
WHEREOF, Appellants as Plaintiffs, sought the following
reliefs -
(1) A DECLARATION that the purported dissolution of the
E.S.I.EC. and termination of the Plaintiffs’ appointment as
Chairman and Members of the Commission by the
Defendants alongside all other Commissions. Boards and
P a r a s t a t a l s v i d e a r a d i o a n n o u n c e m e n t o n
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 E.S.I.E.C. 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.
3
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9) LP
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SC)
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, 199 and 201 of the 1999 Constitution.
The Respondents appealed. In allowing the Appeal, the
Court of Appeal stated as follows in its Judgment delivered
on 26/3/2013 -
4
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9) LP
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413(
SC)
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 to 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
5
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9) LP
ELR-46
413(
SC)
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.
Ill. 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 & ANOR 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.
6
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9) LP
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413(
SC)
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.
7
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9) LP
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413(
SC)
They cited the following authorities on the position of the
law
-Oloruntoba-Oju V. Abdul-Raheem (2006) 13 NWLR
(Pt. 1157) 83;
- Olaniyan V. University of Lagos (1985) 2 NWLR (Pt.
2) 599 @ 602;
- Bamgboye V. University of Ilorin (1999) 10 NWLR
(PT. 622) 290 @ 346;
- UMTH Management Board V Dawa (2007) 16 NWLR
(Pt 739) 424:
- P.H.C.N. Plc. V. Offoelo (2013) 4 NWLR (Pt. 1344)
380 @ 408:
-Obeta V. Okpe (1996) 9 NWLR (Pt. 473) 401
- Fed. Medical Centre Ido-Ekiti V. 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 Appeal's 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-
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9) LP
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413(
SC)
8
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9) LP
ELR-46
413(
SC)
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 (PT. 1007) 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
26/04/2014. That Judgment - - has knocked the
bottom completely off the Respondents' case in this Appeal.
9
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9) LP
ELR-46
413(
SC)
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.
10
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9) LP
ELR-46
413(
SC)
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) 5
NWLR (Pt. 148) 24.
As to the decision inGovernor 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.
11
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9) LP
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413(
SC)
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.
12
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9) LP
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413(
SC)
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
13
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9) LP
ELR-46
413(
SC)
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 26/4/2014" 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 wants 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.
14
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9) LP
ELR-46
413(
SC)
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 Galinje, 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."
15
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9) LP
ELR-46
413(
SC)
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
16
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9) LP
ELR-46
413(
SC)
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 will be citing them out of their proper
context, for without facts, it is impossible to know the law
on those facts.
17
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9) LP
ELR-46
413(
SC)
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 2007. 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.
18
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9) LP
ELR-46
413(
SC)
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.
19
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9) LP
ELR-46
413(
SC)
See also Oloruntoba-Oju V. Abdul-Raheem (supra)
Bamgboye V. University of Ilorin (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 the case of ex-officio members or where other
provisions are made in this Constitution, the Chairman and
Members of any of the bodies (such as the ES.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.
20
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9) LP
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413(
SC)
(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,
21
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9) LP
ELR-46
413(
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 - Owoade V Omitola
(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 Courts discretion in his favour - Egbunike
V Muonweokwu (1962) All NLR 46. 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 -
22
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9) LP
ELR-46
413(
SC)
see A.G., Rivers State V. A.G., 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
23
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9) LP
ELR-46
413(
SC)
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
24
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9) LP
ELR-46
413(
SC)
Prisoners at the Queen's pleasure, or when applicable at
"His Majesty’s' pleasure or Kings 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 Common Wealth, realms, wherein the phrase is
modified to be "at the Governors' 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,
25
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9) LP
ELR-46
413(
SC)
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.’’
26
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9) LP
ELR-46
413(
SC)
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 expression
unius est exclusion (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 (Pt 304) 139 SC and Att.-Gen.,Ondo
State V. Att.-Gen., Ekiti State (2001) 17 NWLR
(Pt. 743) 707.
27
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9) LP
ELR-46
413(
SC)
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:
28
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9) LP
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SC)
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
Constitution "at his pleasure", the Governor went outside of
his mandate and acted ultra vires.
29
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9) LP
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413(
SC)
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.
30
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9) LP
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SC)
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.
OLABODE RHODES-VIVOUR, J.S.C.: I read a draft copy
of the leading judgment prepared by my learned brother,
Augie, JSC and I am in complete agreement with the
reasoning and conclusions that the appeal has no merit
whatsoever.
Section 197 (1) of the Constitution states that:
197(1). There shall be established for each state of the
Federation the following bodies namely;
(a) State Civil Service Commission;
(b) State Independent Electoral Commission; and
(c) State Judicial Service Commission.
While Section 198 of the Constitution states that-
198. Except in the case of ex-officio members or where
other provisions are made in this Constitution, the
chairmen 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
31
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9) LP
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413(
SC)
the appointment shall be subject to confirmation by a
resolution of the House of Assembly of the State.
By a letter dated 10th October, 2016, the appellants were
appointed full-time Chairman and Members of the Ekiti
State Independent Electoral Commission (i.e) in Section
197(1) of the Constitution.)
Their letter of appointment 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
October, 2008. The appointment is at the pleasure of the
Governor please."
On 22 October, 2010 the new Governor of Ekiti State Dr.
Kayode Fayemi dissolved the State Independent Electoral
Commission. The appellants were furious and sought
redress in Court. Do they have a case? They clearly do not
have a case.
In the appointment of the appellants there was non-
compliance with the provisions of Section 198 of the
Constitution which clearly stipulates that the appointment
of the appellants by the Governor shall be subject to
confirmation by resolution of the House of Assembly
32
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9) LP
ELR-46
413(
SC)
of the State. Since the appellants appointment was never
confirmed by the House of Assembly their appointment was
clearly at the pleasure of the Governor, a nullity.
Any person that accepts appointment at the pleasure of a
Governor can also be removed at the pleasure of the
Governor. The appellants were rightly removed by the
Governor.
Once again since there was non-compliance with the
provisions of Section 198 of the Constitution, the
appointment of the appellants was fundamentally defective.
There can be no redress for the appellants when their
appointment was at the pleasure of the Governor and in
clear violation of Section 198 of the Constitution.
Furthermore, and finally the appointment of the appellants
was null and void for non-compliance with Section 198 of
the Constitution.
For these brief reasons and the more detailed reasoning in
the leading judgment, I too dismiss this appeal, it being
devoid of merit.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of
reading in draft the lead judgment of my learned brother,
Amina Adamu Augie, JSC just delivered. I agree entirely
with the reasoning therein and conclusion
33
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9) LP
ELR-46
413(
SC)
arrived thereat, that the appeal lacks merit and should be
dismissed. I too will dismiss the appeal.
Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: The facts and
circumstances leading to this appeal have been
meticulously summarized by my learned brother, Augie,
JSC in the lead judgment of which I had been privileged to
read before now and with which l am in complete
agreement. Save as it is necessary to refer to any portion of
those facts for the purpose of dealing any point in
discussion in this appeal or for emphasis on the lead
judgment. It will not be necessary to recapitulate the facts
in this judgment.
With regard to issue 2 formulated and argued by the
appellants, to wit:
"Whether Appellants can be removed from office by
Respondents before the expiration of the five years
tenure provided for them by the 1999 Constitution of
the Federal Republic of Nigeria except and in
accordance with the relevant provisions of said 1999
Constitution except and in accordance with the
relevant provisions of the said 1999 Constitution and
whether the Appellants were not entitled to continue
in office by virtue of the provisions of the
said Constitution
34
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9) LP
ELR-46
413(
SC)
(as amended) notwithstanding the nullification of the
election of the governor who appointed them into
office."
I shall commence by reproducing the provisions of Sections
198 and 201 of the 1999 Constitutions relied upon by the
appellants as follows:
Section 198:
"Except in the case of ex - officio members or where
other provision are made in this Constitution,
chairman and members of any of the bodies so
established shall, subject to the provisions of the
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.’’
Section 201:
‘’(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 third 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.
35
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9) LP
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SC)
2. This section applies to the office of the chairman
and members of the State Civil Service Commission,
the State Independent Electoral Commission and the
State Judicial Service Commission."
The tenure of office of the chairman and members of the
State Independent Electoral Commission appointed by the
State Governor under the aforecited Sections of the 1999
CFRN had been settled by this Court in the case of The
Governor of Kwara State v. Ojibara{2006) 18 NWLR
(PT. 1012) 545 where this Court, per Oguntade, JSC [as
he then was) held as follows:
"The tenure of the Governor of a State under 1999
Constitution as well as that of the State legislature is
four years. The Constitution however, grants the
members of a State Independent Electoral
Commission, a tenure of five years. It ought not to
escape attention that the deliberate purpose of the
Constitution is to create an Electoral Commission, the
lifespan of which exceeds those of both the Governor
and the State Legislature. This is done with the view
to create continuity and stability in the electoral
process and governance. The same is done in relation
to
36
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9) LP
ELR-46
413(
SC)
the State Civil Service Commission and the State
Judicial Service Commission. It is not the intendment
of the Constitution that the membership of those
Commissions should change with the fortunes of the
political parties in a State."
That is the law and I cannot add to it or subtract from it in
determining this appeal. However, the question agitating
my mind is whether the appointments of the Appellants met
the requirements of Section 198 of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended). It must
not be lost that their appointments were at the pleasure of
the Governor, who appointed them and there is no record
that their appointments were confirmed by a resolution of
the House of Assembly of the State as required under
Section 198 of the Constitution. I dare say that the
appointments of the appellants were not governed by the
provision of Section 198 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended). In the same vein,
their removal cannot be subjected to the provision of
Section 201 of the Constitution.
I have found no reasons to differ in the reasoning leading to
the conclusion of my Lord, Augie, JSC in
37
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9) LP
ELR-46
413(
SC)
the lead judgment. I hold that this appeal lacks merit and I
affirm the judgment of the Court below. Appeal dismissed.
No order as to costs.
CHIMA CENTUS NWEZE, J.S.C.: 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 drafts person 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, realizing 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.
38
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9) LP
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SC)
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
39
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9) LP
ELR-46
413(
SC)
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 the confirmation of the House.
40
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9) LP
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413(
SC)
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
[1989] 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
41
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9) LP
ELR-46
413(
SC)
enforced as concluded contracts, Scarnmell v. Ouston
(1941) All ER 14; Courtney and Falrbaine 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 vaporized 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.
42
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9) LP
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413(
SC)
Appearances:
Obafemi Adewale, Esq. with him, EzekielAgunbiade. Esq., Olubunmi Olugbade, Esq.,Adeyemi Adewumi, Esq. and Rashidat Ajise, Esq.For Appellant(s)
Owoseni Ayayi, Esq. with him, Dolapo Kehinde,Esq.For Respondent(s)
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9) LP
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413(
SC)