Chief S. B. Adeyeye & Ors V. Governor, Ekiti State & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A.(Delivering the Leading Judgment)

The Appellants who were plaintiffs at the Ekiti State High Court sitting at Ado-Ekiti in Suit No: HAD/10/2004, were appointed as Chairman and members of the Ekiti State Independent Electoral Commission on the 22nd April, 2001, whilst the 7th Appellant was appointed as member of the said Commission on the 5th of March, 2003.

The 1st Appellant was Chairman of the Commission, while the 2nd – 7th Appellants were members. Their respective appointments were for duration of five (5) years pursuant to Section 199(c) of the 1999 Constitution of the Federal Republic of Nigeria. However, on the 11th July, 2003, the Secretary to the Ekiti State Government wrote the Appellants intimating them that their services were no longer required with effect from 30th of June, 2003 and that they have been relieved of their posts as Chairman and members of the Commission respectively.

The said letters terminating the appointment of the Appellants were annexed to their affidavit in support of the action as Exhibits I, J, K, L, M, N and O respectively. The Appellants were aggrieved by the action of Ekiti State Government and therefore took out an originating summons against the Respondents seeking for the determination of the following questions:

1. Whether by the effect of the provisions of Sections 197, 198, 199 and 201 of the 1999 Constitution of the Federal Republic of Nigeria and the terms of the plaintiffs’ respective appointments as contained in their individual letters of appointment, the plaintiffs are not entitled to continue in office until the 22nd March, 2006 except Mr. S.A. Agbaje whose tenure is due to expire by 5th March, 2008.
2. Whether under the law establishing the State Independent Electoral Commission, Ekiti State of which the plaintiffs are Chairman and members, it is competent for the plaintiffs to be removed from office by 1st Defendant without any cause whatsoever.
3. What is the legal effect of the dissolution of the State Independent Electoral Commission and resultant removal of the plaintiffs from office before the expiration of their current term of office.

The Appellants, as plaintiffs, then claimed for the following reliefs:

1. Declaration that under the terms of their membership of the Ekiti State Independent Electoral Commission as contained in the Sections 197, 198, 199 and 201 of the 1999 Constitution of the Federal Republic of Nigeria and their respective letters of appointment, they are entitled to continue in office as Chairman and members of the Commission until 22nd March, 2006 except the 7th plaintiff Mr. S.A. Agbaje whose tenure is due to expire by 5th March, 2008, unless removed for good cause.
2. Declaration that the purported removal of the plaintiffs from their respective offices via the dissolution of the Boards of all Parastatals, Agencies and Commissions as contained in circular letter No: EK/P&E/11/46 of the 2nd June, 2003 as well as individual letters dated 11th July, 2003 is illegal, unconstitutional, against the rules of natural justice, null, void and of no effect.
3. Declaration that the first – sixth plaintiffs and the 7th plaintiff are entitled to receive salaries and allowances attached to their offices as Chairman and members of the Ekiti State Independent Electoral Commission up till 22nd March, 2006 and 5th March, 2008 respectively.
4. An Order of injunction restraining the Defendants from treating the plaintiffs appointments as Chairman and members of the Ekiti State Independent Electoral Commission as having come to an end or appointing other persons to replace them and perform the duties of their offices.

OR IN THE ALTERNATIVE

5. An Order of payment of the first to sixth plaintiffs and seventh plaintiff, the total of all remunerations due to them up till and including 22nd March, 2006 and 5th March, 2008 respectively as damages for premature removal from office.

The originating summons which is dated the 28th day of January, 2004 was filed before the lower court on the 29th of January, 2004. It is supported by an affidavit of 39 paragraphs deposed to by Chief Samuel Bamidele Adeyeye who is the 1st Appellant. The affidavit was deposed to with the consent and authority of the other Appellants. Annexed to the affidavit are several documents marked as Exhibits A – U respectively.

The Respondents filed a Counter Affidavit of 7 paragraphs, with several sub-paragraphs wherein they resisted the Appellants’ claims. The votes and proceedings of the Ekiti State House of Assembly dated 6th day of June, 2003 was Exhibited to the Counter Affidavit of the Respondents as Exhibit PAF1. The Appellants responded to the Counter Affidavit by filing a Further and Better Affidavit dated 14/02/2005. Arguments on the Motion were taken before the lower court on the 8/03/2005, 29/7/2005, 18/10/2005, 27/01/2006 and 13/2/2006 respectively. In a considered judgment delivered on the 26th May, 2006, the learned trial judge refused the plaintiffs/Appellants’ claims before him and consequently dismissed same as lacking in merit. The Appellants are dissatisfied with the said judgment and have now appealed to this court vide Notice of Appeal dated the 7th day of July, 2006.

Before this appeal could be heard, the Appellants filed an Amended Notice of Appeal vide Motion on Notice dated the 3rd February, 2010 and filed the 12th February, 2010. The Amended Notice of Appeal which is dated the 14th of May, 2010 was filed on the 17th of May, 2010 but deemed filed on the 1st of November, 2010. By the Amended Notice of Appeal, the Appellants premised their appeal on 4 Grounds. They are hereunder reproduced, but without their particulars:

GROUND 1:

The decision is against the weight of evidence.

GROUND 2:

The learned trial judge erred in law by holding thus:

“Since Exhibits I – O were issued and served of (sic) the plaintiffs after obtaining the resolution of the House of Assembly and the fact that the plaintiffs were paid and received their salaries for month of June, 2003 couple (sic) with my earlier holding that the effective date of the dissolution of the commission was 30/6/03 it means that exhibit ‘H” is no more relevant in this case (as the plaintiffs cannot probate (sic) and reprobate). They can not eat their cake and have it and that the provision of Section 201 was (sic) compiled with in reliving (sic) the plaintiffs of their positions as Chairman and members of the Commission.”