Governor, Ekiti State & Anor V. Chief Femi Akinyemi & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

The Respondents herein, who were the Plaintiffs at the Ado-Ekiti Division of the High Court of Justice, Ekiti State, in Suit No: HAD/119/2010, took out an Originating Summons dated the 1st day of November, 2010, against the Appellants (Defendants at the High Court) for the determination of the following questions:-

1. Whether the Plaintiffs who are the Chairman and members of the Ekiti State Local Government Service Commission constituted under the Local Government Service Commission law can be removed or their tenure terminated and the Commission dissolved by the Defendants otherwise than in accordance with the provisions of the Local Government Service Commission Law, No.2 of 2000.
2. Whether the Defendants, who are the Executive Governor of Ekiti State and the Chief Law Officer of the State, have the powers to dissolve the Ekiti State Local Government Service Commission and thereby relieve the Plaintiffs of their appointments without regard to Sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law, No.2 of 2000.
3. Whether the Defendants are not bound by the aforesaid provisions of Ekiti State Local Government Service Commission Law No.2 of 2000 which established the Ekiti State Local Government Service Commission in their actions and decisions concerning the Plaintiffs.
4. Whether the purported dissolution of the Ekiti State Local Government Service Commission and termination of the appointment of the Plaintiffs as Chairman and members respectively by a general radio announcement was a violation of the provisions of Sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law No.2 of 2000 and is hereby ultra vires and null and void.
5. Whether the Radio announcement by the Defendants on the 22nd day of October, 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 Plaintiffs.

Whereof the Respondents (Plaintiffs) claimed against the Appellants (Defendants) the following reliefs:-

1. A DECLARATION that the purported dissolution of the Ekiti State Local Government Service Commission and termination of the Plaintiffs’ appointment as Chairman and Members of the Commission by the Defendants alongside all other Commissions, Boards and Parastatals vide a radio announcement on the 22/10/2010 is unlawful, wrongful, illegal, 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 Ekiti State Local Government Service Commission.
3. AN ORDER of injunction restraining the Defendants from treating and/or regarding the appointment of the Plaintiffs as Chairman and Members respectively of Ekiti State Local Government Service Commission as having come to an end, and/or appointing other persons to replace them before the end of their 3 year tenure as guaranteed by Sections 3(1) and 4(1) of the Ekiti State Local Government Commissions Law No.2 of 2000.
4. AN ORDER re – instating the Plaintiffs as Chairman and Members of the Ekiti State Local Government Service Commission forthwith and restoring to them all other rights, perquisites and entitlements of their offices.

OR IN THE ALTERNATIVE

5. AN ORDER of payment to the Plaintiffs the total of all remunerations due to them up till and including 11th day of February, 2011.

Attached to the Originating Summons is a 29 paragraphed Affidavit, deposed to by Mr. Jide Egunjobi (the 3rd Respondent/Plaintiff) and to which was attached Exhibits A, B, C1, C2, D and E.

The Respondents also filed a motion on Notice, dated the 1st day of November, 2010 for:-

AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Defendants their servants, agents and/or privies from constituting any other Local Government Service Commission or appointing anybody as Chairman and members of Local Government Service Commission pending the final determination of the substantive suit herein. The motion on notice was supported by a 29 paragraphed Affidavit deposed to by Mr. Jide Egunjobi (3rd Plaintiff/Respondent) and to which was also attached Exhibits A, B, C1, C2, D, E, F, and G.s.

On the 18th day of November, 201 0, the Appellants (Defendants) filed a Notice of Preliminary Objection, contending that the Lower court lacks the jurisdiction to entertain the action and same is liable to be struck out in limine.

The grounds upon which the objection was brought is that –

1. The Plaintiffs/Respondents has no cause of action.
2. The action is incompetent before the court, and
3. The action is frivolous, vexatious and therefore incurably incompetent and defective.

The Affidavit in support of the Preliminary Objection was filed on the 19th day of November, 2010 deposed to by one Seun Olayinka, containing seven (7) paragraphs and to which was attached Exhibits AG1 -AG 10.

On the 19th day of November, 2010, the court ordered that Written Address be filed by both counsel to the Originating Summons as well as the Notice of Preliminary Objection. On the 22nd day of December, 2010, parties adopted their Written Addresses and judgment was reserved. See pages 1 – 103 of the Records.

In a considered judgment, the learned trial judge, Hon. Justice A. K. Fowe, on the 17th day of January , 2011, found in favour of the Respondents, and granted all the reliefs sought by them, except prayer No.4, which sought for reinstatement of the Respondents into their respective positions in the Local Government Service Commission of Ekiti State but instead granted the ALTERNATIVE RELIEF sought for the payment of their full entitlements up to and including the 11th day of February 2011, when their 3 – year tenure would have expired.

Being aggrieved by this decision, the Appellants filed two notices of appeal on the 18th day of January, 2011 and on the 9th day of February, 2011 respectively. However, the Notice of Appeal dated 5th February, 2011 and filed on the 9th day of February, 2011 was predicated upon Eight (8) grounds of appeal from which the Appellants’ Brief of Argument was filed.

The Grounds of Appeal, without their particulars are hereby reproduced:-