Dr. Akanbi Adewole & Ors V. Attorney-general And Commissioner Of Justice Of Ondo State & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Ondo State High Court of Justice sitting at Akure in Suit No. AK/56/04 delivered on the 24th day of March, 2004.

In the said suit commenced by an originating summons dated 9th March, 2003 and filed on the 9-3-2004, the Appellants herein had claimed against the Defendants thereat, including the only Respondent (subsisting) now, (i.e. the Attorney-General and Commissioner for Justice, Ondo State certain reliefs and upon an application for the determination of the following Questions and Declarations to wit):

1. “Whether the Plaintiffs as members of the State Independent Electoral Commission are entitled to continue in office for a period 5 years from the date of appointment unless otherwise removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999.
2. Whether the purported removal from office of the plaintiffs on or about the 30th day of May, 2008 by the Defendant is in accordance with section 201(1) of Constitution of the Federal Republic of Nigeria 1999.
3. Whether the purported constitution and/or appointment of the 2nd to 6th Defendants as members of the State Independent Electoral commission is ultra vires the powers of the Ondo State Government, unconstitutional, null and void.
4. Whether a person can be appointed in place of any of the Plaintiffs unless and until such a plaintiff has completed his tenure or been removed from office in accordance with section 20(1) of the Constitution.
5. Whether the 2nd to 5th Defendants appointed as members of the Ondo State Independence Electoral Commission upon the unilateral removal and/or dismissal from office are constitutionally disentitled to the office.
6. Whether the compilation and updating of the Ondo State’s voters’ register which shall include the names of all persons entitled to vote in any Local Government Election is a condition precedent to the conduct of Local Government Election in Ondo State.

And the Plaintiff seeks the following declarations:

“1. A declaration that the Plaintiffs as members of the State Independent Electoral Commission are entitled to continue in office for a period of 5 years from the date of appointment of each of them unless otherwise removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999.

2. A declaration that the purported removal from office of the Plaintiffs on or about the 30th day of May, 2003 by the Ondo State Government represented by the Defendant is inconsistent with section 209(1) of the Constitution of the Federal Republic of Nigeria 1999 and is accordingly void and of no effect whatsoever.
3. A declaration that the purported constitution and/or appointment of the 2nd to 6th defendants members of the State Independent Electoral Commission is ultra vires the powers of the Ondo State Government, unconstitutional, null and void.
4. A declaration that no person can be appointed in place of any of the Plaintiffs unless and until such a plaintiff has completed his tenure or been removed from office in accordance with section 201(1) of the Constitution.
5. A declaration that the present membership of the Ondo State Independent Electoral Commission unconstitutionally constituted are disentitled to the office having regard to the Constitution of the Federal Republic of Nigeria 1999.
6. A declaration that the compilation and updating of the register of voters which shall include the names of all persons entitled to vote in any Local Government Election is a condition precedent to the conduct of Local Government Election in Ondo State.
7. A perpetual injunction restraining the Defendant, its agents, functionaries, servants or appointees to the Ondo State Independent Electoral Commission from interfering with the tenure, office, rights, privileges or duties of the plaintiffs, howsoever or whatsoever while in office.
8. A perpetual injunction restraining the Defendants by their agents, representatives or appointees to the Ondo State Independent Electoral Commission from carrying on or carrying out the work of the Plaintiff Commission regarding election into Local Government offices of Ondo State howsoever whatsoever.
9. An order of court invalidating the appointment of members of Ondo State Independent Electoral Commission made on or about 30th May, 2003 by the government of Ondo State upon the unilateral and arbitrary termination of the Plaintiffs right to office”
10. An order of court returning the Plaintiffs to office as Commissioners of Ondo State Independent Electoral Commission with rights, privileges duties, responsibilities whatsoever or howsoever.
11. An order of court directing that the compilation and updating of Registry of voters be compiled before the conduct of the Local Government Election in Ondo State.”

FACTS OF THE CASE

The case of the appellants is as stated in the affidavit IN support of the originating summons. But in summary it is as follows:

The Appellants were appointed as Constitutional employees to the Ondo State Independent Electoral Commission at various times by the government of Ondo State that ended its tenure on May 29th, 2003. That the last tenure of the newest appointee i.e. 4th appellant under section 199(1) (c) should constitutionally end in February 2007 (See; Records P.13).

On or about 30th day of May, 2003 less than 24 hours after the new government came into power it was without any notice in writing, oral communication or official or formal information Of any type, announced on the air-waves the removal of all Appellants from constitutional office. Immediately thereafter the government of Ondo State appointed the 2nd to 6th Respondents as members of Ondo State Independent Electoral Commission in place of the Appellants. Appellants from the date of removal made all efforts to find out and resolved the unlawful removal through negotiation until January 2004 (see Records at p. 24).

In view of lack of positive response from the government of Ondo State after series of negotiation meetings, Appellants by way of originating summons dated 9th March, 2004, initiated the cause of action against the Respondent with affidavit of urgency.

On 17th March, 2004 the matter was heard and on 25th March, 2004 the learned trial Judge dismissed the cause of action on the ground that Public Officers Protection Law Cap 103 debars Appellants from initiating this action, consequently that the Court lacked jurisdiction.

At the trial, the Learned Judge thereat, His Lordship A. O. Akinwalere, J having taken the addresses of respective learned counsel for the parties and after a perusal of the summons and all the supporting documentary annextures thereto the affidavit of the parties; and in particular having considered a Notice of Preliminary Objection on points of law filed by Counsel to the Defendant, C. K. Akinsola, Esq. in the following terms:-

“TAKE NOTICE that the Defendants/Applicants intend at the hearing of this suit to rely on the following preliminary objection on the grounds and particulars herein contained:

GROUNDS