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

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SAKA ADEYEMI IBIYEYE, J.C.A.

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

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

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

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

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

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

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

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

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

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

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

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

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