Deacon Goke Ojediran V. The Governor Of Oyo State & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

The appeal in this case is over a decision of the High Court of Oyo State in Suit No. I/753/2003 that the appellant could not maintain his action against the respondents by reason of the limitation period stipulated in the Public Officers Protection Act.

The appellant was the plaintiff in the lower court. His case as gathered from the Amended Statement of Claim before the lower court in summary is this: by a letter dated 30/12/99 he was appointed a full-time member of the Oyo State Independent Electoral Commission. Under the Constitution of the Federal Republic of Nigeria 1999, the tenure of his appointment was a period of 5 years. The Constitution also provided for the way and manner in which he could be removed from office.

He accepted the appointment, served as a member of the said Independent Electoral Commission and earned his salary and allowances up to the end of May, 2003. On 1/6/2003, the Governor of Oyo State (sued as the 1st defendant in the lower court) gave an address at the Oyo State House of Assembly in which he made a request of that House for a review of the composition and membership of the Oyo State Independent Electoral Commission. In that same month of June 2003, there was a publication on radio, television and the Nigerian Tribune Newspaper to the effect that the Oyo State Independent Electoral Commission had been dissolved.

That same media statement was contained in the official report or hansard of the Oyo State House of Assembly. No letter was written to the appellant about the dissolution of the Commission. Shocked, the appellant instructed his Solicitors to write to the Secretary to the Government of Oyo State to enquire if he was affected by the dissolution of the Independent Electoral Commission. His Solicitors by a letter dated 20/6/2003 complied with the instruction.

There was however no reply to the letter, instead an announcement was made over the radio and television about the appointment and swearing in of some persons as Chairman and Members of the Oyo State Independent Electoral Commission, Aggrieved, the appellant filed a suit at the lower court where he sought the following:-

1. A DECLARATION that the plaintiff has not been lawfully removed as a full-time member of the Oyo State Independent Electoral commission in accordance with the provisions of the constitution of the Federal Republic of Nigeria, 1999.
2. AN ORDER for payment to the plaintiff by the defendant of the total sum of N4,326,522:52k being salary, allowances and all other entitlements for the unexpired period of the plaintiff’s five year term of office as full-time member of Oyo State Independent Electoral Commission from 1st June, 2003 to December, 2004.

The respondents on 21/4/2006 filed a Notice of preliminary Objection dated 12/4/2006 challenging the jurisdiction of the lower court to entertain the suit on the ground that the action is statute barred, having been brought in contravention of section 2(a) of the public officers protection Act, Cap 41, Laws of the Federation of Nigeria, 2004. The trial Judge considered the preliminary objection and on 18/12/2006 delivered a ruling in which he held that the suit was statute barred. He accordingly dismissed it.

Dissatisfied with the ruling, the appellant through his counsel Babatunde A. Aiku Esq. filed a Notice of Appeal on 21/2/2011 challenging it on two grounds. The said brief by an order of this court was deemed as properly filed on 17/4/2012. The Respondents Brief of Argument was prepared by Adegboyega Salawu Esq., Senior Legal Officer, Oyo State Ministry of Justice. It was filed on 15/5/2012.

Appellant’s counsel identified a single issue for determination; viz –

Whether in view of the available materials and the state of the law, the lower court was right in dismissing the plaintiffs claim on the ground that it was statute barred.

Learned counsel referred to section 201 of the constitution of the Federal Republic of Nigeria 1999 on the removal of any person holding office as chairman or Member of the state Independent Electoral commission. He submitted that from the pleadings it is clear that the dissolution of the Oyo State Independent Electoral commission and the constitution of a new one, did not take place during the address of the Governor of Oyo State at the Oyo State House of Assembly on the 1st of June, 2003. He contended that the removal of the appellant from office as a member of the Oyo State Independent Electoral commission was also not communicated to the appellant on the 1st of June, 2003.

Learned counsel argued that although no date was pleaded for the purpose of calculating the date in which the cause of action arose, the learned trial Judge held in his ruling that the cause of action arose on the 1st of June, 2003. He submitted that the request of the 1st respondent (the Governor of Oyo State) to the House of Assembly on the 1st of June, 2003 did not constitute a completed act of removal under section 201 of the 1999 constitution and therefore did not give rise to a cause of action.

He argued that the trial Judge was wrong in taking the 1st of June 2003 as the date that the cause of action arose. The trial Judge took that date he submitted, merely because the appellant claimed his salary from that date. He contended that the correct position of the law given the facts of the case can only be that the cause of action arose by the end of June 2003 when the respondents failed to pay the appellant’s salary. He submitted that the trial Judge ought to have taken judicial notice of the fact that salaries are payable in arrears at the end of each month. He contended that if the limitation period had been computed from the end of June 2003, the trial Judge would have found that the appellant’s action was commenced within time.

Appellant’s counsel submitted that the respondents acted outside their statutory or constitutional duty as contained in section 201 of the 1999 Constitution and in clear abuse of their office.