Mr. Philip Ikhanoba Aroyame V. The Governor Of Edo State & Anor (2007)

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GEORGE OLADEINDE SHOREMI, J.C.A.

The Appellant in this case who was the plaintiff in the lower court by Originating Summons claim as follows:-

“ORIGINATING SUMMONS

Let the 1st and 2nd defendants of Government House, Benin City, Edo State and ministry of Justice, Ezoti, Benin City, Edo state respectively in the Benin Judicial Division within Eight days after the service of this Summons on them, inclusive of the day of such service cause an appearance to be entered For them to this summons which is issued upon the application of Philip Ikhanoba Aroyame of 9, Emovon Street, Benin City For the determination of the following issues:

(a) A Declaration that the Plaintiff is entitled to continue with his service in the Edo State civil Service until he Attains the age of 60 and the unilateral act of the 1st Defendant to abridge the Plaintiff’s service years is a violation of Section 4(1) of the Pensions act Cap. 346 Laws of the Federal republic of Nigeria, 1990 and therefore ultra vires, unconstitutional, null and void and of no effect whatsoever.

(b) A Declaration that the 1st defendant’s letter number Ts.2.20 Dated 29th September, 2000 titled Disengagement from service and addressed to the Plaintiff purportedly abridging the Plaintiff’s service years without any cause whatsoever is ultra vires, unconstitutional, null and void and of no effect whatsoever.

An Order of this Honourable Court setting aside the said letter.

(c) An Order of this Honourable Court reinstating the Plaintiff as the Auditor-General, Local Government, Edo State until he attains the compulsory retirement age of 60 years.

(d) An Injunction restraining the 1st Defendant whether by himself, agents, servants or workmen howsoever from implementing in any manner whatsoever the aforementioned letter and interfering in any manner whatsoever with the Plaintiff’s career in the Edo State Civil Service without complying with the relevant laws of the federal Republic of Nigeria.”

The Originating Summons was supported by an affidavit in which the Plaintiff deposed as follows:

“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

Philip Ikhanoba Aroyame, Nigerian and Auditor General, Local Government Edo State of 9, Emovon Street, Owongban, Ikpoba Hill, Benin City, do hereby make oath and state as follows:

1. That I am the plaintiff in the aforementioned originating Summons.
2. That I was born on 31/12/1947 as indicated in the Senior Staff List of Bendel State herewith attached and marked As Exhibit “a”.
3. That I was appointed Executive Officer-Accounts on 1/11/1971 vide the mid Western State Public Service Commission letter herewith attached and marked as Exhibit “B”
4. That the said appointment eventually took effect from 1/11/1971 by virtue of the Gazette of the Mid Western State herewith attached and marked as “C”
5. That I continued service in the government of the Mid-Western State and later the defunct Bendel State and now Edo State until 4th March, 1999 when I was appointed the substantive Auditor General (Local Government) by virtue of letter number S.136/71 dated 4th March, 1999 attached herewith and marked as Exhibit “D”.
6. That the said appointment was published in the Edo State Gazette herewith attached and marked as Exhibit “E”.
7. That the Governor – in – Council, Edo State confirmed the said appointment on 18/12/1999 by virtue of a letter number SGA.13/28/1/91 dated 18/12/1999 herewith attached and Marked as “F”.
8. That I continued to discharge my duties as the Auditor General (Local Government) Edo State without any let or Hindrance until 28th September, 2000 when the 1st Defendant Instructed the secretary to the State Government to relieve Me of my duties.
9. That the letter from the Secretary to the State Government Purported removing me from office is herewith attached and Marked as Exhibit “G”.
10. That on 29/9/2000 the Secretary to the State Government on The instructions of the 1st Defendant issued me another letter retiring me from service which letter is herewith attached, and marked as Exhibit “H”.
11. That the office of Auditor-General (Local Government) of Edo State was existence before the enactment of the Constitution of the Federal Republic of Nigeria, 1999.
12. That I have not attained the age of 60 years and therefore cannot be forced into a premature retirement.
13. That unless the defendants are restrained by this Honourable Court, they will continue to prevent me from Continuing with my lawful duties as the Auditor- General (Local Government) of Edo State.
14. That the defendants will suffer no injury if I am reinstated As the Auditor-General (Local government) of Edo State.
15. That I am abiding civil servant of Edo State and citizen of Nigeria.
16. That it is the interest of justice that all existing laws of the Federal Republic of Nigeria and the Constitution are respected by the defendants.
17. That I make this solemn declaration conscientiously believing the same to be true and in accordance with The provision of the Oath Act”

To this supporting affidavit, the Respondents through their counsel filed a Counter-affidavit. The relevant parts are as follows:

“COUNTER AFFIDAVIT TO ORIGINATING SUMMONS FILED ON THE 3RD DAY OF APRIL, 2001 UPON THE APPLICATION ON BEHALF OF THE PLAINTIFF HEREIN