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Home » Nigerian Cases » Supreme Court » Oba J.A. Awolola, The Ededa Of Eda-oniyo Ekiti Vs The Governor Of Ekiti State & 2 Ors (2018) LLJR-SC

Oba J.A. Awolola, The Ededa Of Eda-oniyo Ekiti Vs The Governor Of Ekiti State & 2 Ors (2018) LLJR-SC

Oba J.A. Awolola, The Ededa Of Eda-oniyo Ekiti Vs The Governor Of Ekiti State & 2 Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, JSC

On the 1st of October, 1996, the Federal Military Government of Nigeria, by the State’s Creation Transitional Provisions Decree NO. 36 of 1999 created among others, Ekiti State with Ilejemeje Local Government Area as one of the constituent Local Governments. The headquarter of this Local Government was located at Eda-Oniyo, the town where the Appellant herein is the paramount traditional ruler. Soon after the creation of the Local Government Area, the machinery of the Local Government was established in Eda-Oniyo. The 3rd Respondent herein and the staff of the Local Government moved to Eda-Oniyo and set up all the required administrative machinery.

Three months later, there was a radio announcement in which the Ekiti State Government notified the general public that the Ilejemeje Local Government Headquarter had been relocated from Eda-Oniyo to Iye-Ekiti. Following this announcement, the 3rd Respondent immediately moved the staff and the entire machinery’ of the Local Government from Eda-Oniyo to Iye-Ekiti and started operating from there. In protest, the Appellant contacted the office of the head of state which informed him that the Federal Military Government had not ordered the relocation of the Local Government headquarter from Eda-Oniyo to Iye-Ekiti. Subsequent action of the Federal Military Government and all official correspondences with Ilejemeje Local Government confirmed Eda-Oniyo as the headquarter of the Local Government. Protests by the Appellant and his people and their call to return the Local Government headquarter to Eda-Oniyo fell on the deaf ears of Ekiti State Government and its functionaries. In order, to press home their demand, the Appellant as the paramount traditional ruler of Eda-Oniyo, by a writ of summons filed on the 2nd of August, 1999 and the statement of claim dated 17th August, 1999, claimed against the Respondents at the Ekiti State High Court, the following reliefs: –

  1. A declaration that by virtue of the State Creation and Transition Decree NO. 36, Volume 83 of 1996, Local Government (Basic Constitutional and Transitional Provision) Decree of 1997 and 1998, Eda-Oniyo is still the headquarters of Ilejemeje Local Government of Ekiti State.

2.An order of court declaring illegal, irregular unconstitutional and therefore null and void any act done or purported to have been done recognizing Iye-Ekiti as the headquarter of Ilejemeje Local Government of Ekiti State.

3.An order of court restraining the defendants jointly and severally by themselves, their agents and privies from recognizing Iye-Ekiti as the headquarters of Ilejemeje Local Government.

4.A perpetual Injunction restraining the defendants jointly and severally by themselves, their agents and privies from carrying out the administrative activities of the Ilejemeje local Government in any other town apart from the Local Government Headquarters, which is Eda-Oniyo, Ekiti.

The Respondents, who were defendants at the trial court filed a joint statement of defence. Issues having been joined, the suit was heard. After taking witnesses and addresses of counsel, Aladejana J. in a reserved and considered judgment delivered on the 10th of December, 2001, granted reliefs-1, 2 and 3, but refused to grant relief 4. The Respondents herein were not satisfied with the judgment. Being aggrieved, the 3rd Respondent filed an appeal on 18th December, 2001, while the 1st and 2nd Respondents filed their appeal on the 8th March, 2002. The issues in contention at the Court of Appeal were: –

  1. That the trial court had no jurisdiction to hear the matter on grounds that: –

a.It was statute barred,

b.The proper defendants were not before the court

c.Given the nature of the complaint, the Appellant had no reasonable cause of action.

d.The actions or inactions of the then Federal Military Government could not form the subject matter of litigation.

In addition, the 3rd Respondent complained: –

(a)That the Appellant had no locus standi to commence the action.

(b)That no pre-action notice had been served on the Local Government before instituting the action.

(e) That the Respondents had been denied their right of fair hearing.

A panel of the Learned Justices of the Court of Appeal, made up of Muntaka-Coomassie, JCA (as he then was) who presided, A. J. Ikongbeh JCA and H. M Ogunwumiju JCA heard the appeal and reserved judgment. The lead judgment was assigned to Ikongbeh JCA. On the 6th of March, 2006 a different panel made up of M. S Muntaka-Coomassie, A. J Ikongbeh and Tijani Abdullahi J JCA delivered the judgment. Tijani Abdullahi JCA who was not in the panel that heard the appeal, wrote and delivered a contributory judgment to the lead judgment of Ikongbeh JCA.

In the judgment, their lordships held that the action had become statute barred as at the time it was instituted. On this ground alone, the suit of the Appellant herein was dismissed. After having delivered the judgment the learned Justices of the Court of Appeal discovered that Tijani Abdullahi JCA contributed to the judgment in error as he did not take part in the hearing of the appeal. Parties were summoned to appear and address the court on whether the appeal should be heard de novo or same should be rolled back and the judgment delivered by the original party. After the address by learned counsel on both sides, the court delivered its ruling on the 31st of May 2006 in which it upheld the sanctity of its judgment of 6th March 2006.

The appeal before this court is against the judgment of the Court of Appeal delivered on the 6th March 2006 and the ruling of 31st May 2006. The Appellant’s amended notice of appeal filed on the 26th July, 2018 contains five grounds of appeal.

Parties filed and exchanged briefs of argument. Mr. Samuel Ogala, learned counsel for the Appellant formulated two issues for determination of this appeal as follows: –

  1. Was the decision of the Court of Appeal delivered on 6th March 2006 by a panel differently constituted from that which had heard the case a valid judgment within the meaning of the provisions of Section 294(2) of the constitution of the Federal Republic of Nigeria, 1999?
  2. Was the Court of Appeal right in holding that the Public Officers Protection Act was applicable to this case and that the action of the plaintiff/appellant was statute barred?

Mr. Gboyega Oyewole, learned counsel for the 1st and 2nd Respondents adopted the two issues formulated by the Appellant, while Mr. Taiwo Kupolati who seems to be crying more than the Appellant, formulated three issues for determination of this appeal. I set the three issues hereunder as follows: –

  1. Whether the decision of the Court of Appeal dated 6th March 2006 which was affected by bench variation is necessarily a nullity which should be set aside or an irregularity for which prejudice and miscarriage of justice ought to be established or shown before it could be set aside. Does the decision of the Court of Appeal dated 27 May not accord with substantial justice?

2.Whether the decision of Ubwa vs Tiv Area Traditional Council and Sokoto State Government vs Kamdex (Nig) Ltd heavily relied on by the Appellant should be overruled or departed from having been reached per incuriam and on account of their likelihood for perpetuating injustice.

3.Whether the Appellant’s action was statute barred under Section 2(a) of the Public Officers Protection Law, Cap 103 applicable to Ekiti State.

In arguing the 1st issue for determination of this appeal, learned counsel for the Appellant made reference to the decisions of this court in Ubwa vs Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) 427 and Sokoto State Government vs Kundex Nig. Ltd (2007) 7 NWLR (Pt. 1034) 466 and submitted that the judgment delivered by the Court of Appeal, Ilorin Division consisting of Muntaka-Coomassie, Ikongbeh and Abdullahi JJCA on 6th March 2006 was wrongful illegal, unconstitutional and as such a nullity and should be set aside. In the same view, learned counsel urged this court to set aside the ruling of the Court of Appeal delivered on 31st May 2006 as same is misconceived, illegal and unconstitutional and to remit the appeal to a panel of any Court of Appeal Justices who have not in any way been concerned with or partaker in any part of the appeal proceedings in this matter.

See also  Elesie Agbai & Ors. V. Samuel I. Okogbue (1991) LLJR-SC

Learned counsel for the 1st and 2nd Respondents, whose brief is so badly written, as the characters of the letters and the spacing are not in conformity with the rules of this court submitted that even though the Court of Appeal complied with Section 226 of the 1979 constitution, because three Justices of that court sat on the 1st of February, 2006 to hear the appeal, Section 252 (2) of the said constitution was breached because not all the Justices that heard the appeal expressed and delivered their opinion in waiting as required by the constitution. In a further argument, learned counsel submitted that the case of Shuaibu vs Nigeria Arab Bank (1995) 5 NWLR (Pt. 551) 482 relied upon by the Court of Appeal are not on all fours with the facts of this case. It is learned counsel’s further argument that the mistake/misadventure committed by the Court of Appeal in the instant case should not be visited on any of the parties. Finally learned counsel urged this court to set aside the judgment of the Court of Appeal for being a nullity and send the case back to the lower court for hearing de novo by another panel of that court. By this submission, learned counsel for the 1s1 and 2nd Respondents has clearly conceded to the appeal on this issue.

The only opposition to this appeal on the 1st issue is from the learned counsel for the 3rd Respondent whose contention in the main, is inviting this court to overrule or depart from its decisions in Ubwa vs Tiv Area Traditional Council (2004) 11 NWLR (Pt 884) 427 and Sokoto State Government vs Kamdex (Nig) Limited (2007) 7 NWLR (Pt 1034) 466, in order to legitimize the decision of the lower court in this matter. Learned counsel found strength in his argument on the authority of Adeigbe vs Kusimo (1965) NMLR 284, where this court held: –

“We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.”

In the case of Ubwa vs Tiv Area Traditional Council, (supra) the appeal was heard by Akpabio, Umoren and Chukwuma-Eneh. JJCA on 18lh November, 1999. However, on the 14th February, 2000, Akpabio JCA read the lead judgment which was concurred by Umoren and Mangaji JJCA. Mangaji JCA who did not take part in the hearing of the appeal, wrote and delivered a concurring judgment. The learned Justices of this court considered Section 247(1), Section 294(2) and (4) of the 1999 Constitution and had no difficulty in declaring the judgment a nullity and ordered the matter to be heard de novo.

In the case of Sokoto State Government vs Kamdex (Nig) Ltd (supra) three Justices of the Court of Appeal, Ogebe, Aderemi and Chukwuma Eneh JJCA heard an appeal on 5th November, 2003. Galadima who had not taken part in the hearing of the appeal wrote and delivered a concurring judgment instead of Ogebe JCA. On appeal to the Supreme Court, it was held that the judgment was not a complete judgment of the Court of Appeal because one of the Justices who had heard the appeal did not reduce his judgment or opinion in waiting capable of being delivered on the day fixed for the delivery of the judgment as required by Section 294(2) of the 1999 Constitution.

It was thus concluded that the judgment of Galadima JCA rendered the whole judgment of the Court of Appeal a nullity. The facts of the cases of Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex (Nig) Ltd (supra) are on all fours with the facts in the instant case. It will appear that when these cases were heard, the attention of the learned Justices of this court was not drawn to an earlier decision in Shuaibu vs N.A.B Ltd (1998) 5 NWLR (Pt. 551) 582; (1998) 4 SCNJ 109.

The facts of Shuaibu vs N AB Ltd (supra) are on all fours with the instant case. I will recount them in brief. On 21st February, 1991, an appeal was argued before Ndoma-Egba, Mukhtar and Okezie JJCA and judgment Was reserved for 10th April 1991. On 10th April 1991, the same Justices sat, but they read the judgment of Ndoma-Egba, Adio and Okezie JJCA. The record showed that Adio, JCA who was not in the panel that heard the appeal delivered a judgment of the court. Justice Mukhtar JCA who was on the panel that heard the appeal did not deliver any judgment. Wali JSC who delivered the lead judgment, concurred by Ogundare, Ogwuegbu, Mohammed and Onu JJSC, held at page 595 that the judgment of the Court of Appeal was not a nullity. My lords referred to Section 258 (1) (2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria and held: –

“Sub-Section (3) supra clearly provides a solution like the one at hand in this case as it stated that where the decision of the court consists of more than one Judge, the concurring opinion expressed by the majority Justices shall be the binding judgment. The sudden appearance of the name of Adio JCA as delivering a concurring judgment must be without doubt a genuine mistake made in the course of compiling the record. Generally, a court possesses the inherent power to amend its clerical slip in order to avert any misapprehension that may arise therefrom. This court has equally the inherent as well as statutory power under Section 22 of the Supreme Court Act 1960 to correct such a slip made by the courts below. See Asiyimbi vs Adeniyi (1967) 1 ALL NLR 82 and A. G of Oyo State & 2 Ors vs Fairlakes Hotel & Anor (1988) 12 SCNJ (Pt I) 12: (1988) (N0.1) 5 NWLR (Pt. 92) 1. What was recorded as concurring judgment of Adio JCA if excluded, would not affect the validity of the majority judgment of Ndoma-Egba and Okezie JJCA even if it were to be taken that Mukhtar JCA delivered a dissenting decision. See Section 258(3) of the 1999 Constitution (supra) and Section 9 of the Court of Appeal Act, 1976.

The prime duty of any court in taking any decision is to do substantial justice. The wheel of justice could no longer be allowed to he dogged with technicalities.”

Section 258(1)(2) and (3) of the 1979 Constitution of the Federal Republic of Nigeria, the extant constitution when the case of Shuaibu vs NAB Ltd (supra) was decided is in pari material with Section 294 (1)(2) and (3) of the 1999 Constitution of the Federal Republic of Nigeria. This section provides as. follows: –

” 294 (1) Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

(2)Each Justices of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing or may state in writing that he adopts the opinion of any other Justices who delivers a written opinion:

Provided that it shall not be necessary for all the Justices who heard a cause or mater to be present when judgment is to be delivered and the opinion of a justice may be pronounced, or read by any other Justice whether or not he was present at the hearing.

(3)A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”

The West African Court of Appeal (WACA) had held that where membership of a court varied during hearing of a case, the proceedings were a nullity. See Nana Tawiah 111 Kwasi Awudzi 3 WACA 52; Akosuah Otwiwa & Anor vs Adjoa Kwaseko 3 WACA 230; Chief Yaw Damoah vs Chief Kofi Taibil & Anor 12 WACA 167, which were cited and relied upon by the learned counsel for the 3rd Respondent. The facts in those cases are distinguishable from the facts of the instant case. The bench variation in those cases occurred at the trial court, where witnesses gave evidence. It was the view of the West African Court of Appeal that it was inappropriate for judges who did not hear some of the witnesses testify and observe their behaviour/demeanour during their testimonies were not competent to participate in the delivery of the judgment. As far as the circumstances of those cases were concerned it was a sound

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decision. However, in the instant case, the matter was at the Court of Appeal and there was no requirement for testimonies of witnesses. The court was correctly constituted as regard its members when the appeal was heard. Two out of the three Justices that heard the appeal delivered their majority opinion which became the judgment of that court. Was there a complaint of miscarriage of Justice as a result of the participation of Tijani Abdullahi JCA in the delivery of the judgment of the court? I do not think there was any complaint of miscarriage of justice. In Shuaibu vs NAB Ltd (supra) this court said: –

”Section 258 of the Constitution provides: –

‘A decision of a court consisting of more than one judge shall be determined by the opinion of the majority of its members’ of the three justices that heard the appeal on Friday 20,1991 two that is Ndoma-Egba and Okezie JJCA ruled in favour of allowing the appeal What it means is that even if Mukhtar JCA had dissented, her dissent would have had no effect on the judgment that the appeal was allowed. Therefore, in my respectful view and having regard to the circumstances, the participation of Adio JCA in the judgment of the court below regrettable as it is, did not vitiate the proceedings of the court below. The position would have been otherwise had Okezie JCA or Ndoma-Egba JCA dissented and Adio JCA had joined either of them to form a majority.”

A close perusal of the judgment that was delivered on the 6th March 2006, the subject matter of the appeal herein, it is apparent that Ikongbeh and Muntaka-Coomassie JJCA delivered judgment in appeal no. CA/IL/14/2002, while Tijani Abdullahi JCA delivered what was termed as his contributory judgment in Appeal No. CA/IL/14/2005. Clearly the judgment of Tijani Abudullahi JCA was not delivered in the same appeal as the one in which the majority judgment of Ikongbeh and Muntaka-Coomassie JJCA was delivered. It follows therefore that Ogunwumiju JCA is yet to deliver his judgment.

Be that as it may, I entirely agree with my learned brothers that in the circumstances of the case of Shuaibu vs NAB (supra) which is the same situation I find myself in this case, the judgment of the Court of Appeal is not a nullity. The participation of Tijani Abdullahi JCA at the stage of judgment was a mere irregularity which could result in the setting aside the judgment only if there is evidence of miscarriage of justice. Courts are established for the purpose of deciding the rights of disputing parties in order to terminate their disputes once and for all Once a case has been rightly decided, the dispute should not be reopened by resort to legal technicalities. The lower court in its ruling of 31st May 2006 after considering several authorities came to conclusion that its judgment which was delivered on the 6th March 2006 is not a nullity. I agree entirely with that ruling. I also agree that, had this court considered the provisions of Section 294(3) of the 1999 Constitution and the authority in Shuaibu vs NAB (supra), it would have arrived at a different decision in Ubwa vs Tiv Area Traditional Council (supra) and Sokoto State Government vs Kamdex Ltd (supra). I am therefore of the firm view that the judgment of the lower court delivered on the 6th March 2006 is not a nullity.

This issue is accordingly resolved against the Appellant and in favour of the Respondents.

In arguing the second issue for determination of this appeal, learned counsel for the Appellant submitted that the Public Officers Protection Law of Ondo State as applicable to Ekiti State applies to Public Officers only. According to the learned counsel, the Respondents not being Public Officers within the law are not covered by the provisions of the Public Officers Protection Law. In aid learned counsel cited Governor, Ebonyi State vs Isuama (2004) 6 NWLR (Pt. 870) 511 at 528 – 530; Asogwa vs Chukwu (2003) 4 NWLR (Pt. 811) 540 at 574 – 575; Oniya vs Governor-in-Council (1962) WNLR 89 at 91. In a further argument, learned counsel submitted that the Public Officers Protection Act does not apply to remedies based on constitutional rights, contract, recovery of land and claim for work done.

For the 1st and 2nd Respondents, it is argued that the Respondents are actually public officers as defined under the 1979 and 1999 Constitution, the Interpretation Act and many decided cases. Sections 2(a) of the Public Officers Protection Act, 1990, 18(1) of the Interpretation Act 1990 and Section 277(1) of the 1979 Constitution of Nigeria as well as part 11 of the 5th Schedule to the 1979 Constitution were cited in support of the submission that the Respondents Are Public Officers. In aid the authorities in Ibrahim vs JSC (1989) 14 NWLR (Pt 584) 1, PN Udoh Trading vs Abere (2001) 11 NWLR (Pt 723) 114 at 129 B-C; Eboigbe vs NNPC (1994) 5 NWLR (Pt. 347) 649 at 664 – 665 paragraphs D – B were cited and reliance placed on them.

Finally, on this issue of whether the Respondents Are Public Officers or not, it is argued that the trial court’s verdict that the Respondents are public officers has not been challenged on appeal as such the Appellant is estopped from further arguing on that point.

Learned counsel for the 3rd Respondent associated himself with the learned counsel for the 1st and 2nd Respondents on the issue of whether the Respondents Are Public Officers or not when he submitted that the Appellant having failed to appeal against the decision of the trial court that the Respondents Are Public Officers, can no longer be heard to argue on that point. Learned counsel urged this court to hold that Section 2(a) of the Public Officers Protection Law is available to the Respondents in the circumstances of this case.

In resolving this issue of whether the Respondents Are Public Officers or not, the lower court at page 499 of the record held: –

“Considering all dial I have said I must agree with Appellant and the learned trial Judge that the Appellants Are Public Officers who could benefit from the provisions of the law. They were at the material time engaged in the execution of the constitution and other enactment for the purpose of governing Ekiti State and among others, Ilejemeje Local Government which was in the nature of public duty. To succeed in his action against them, therefore, the respondents was obliged to have commenced the action within the stipulated time limit.”

Section 2 (a) of the Ekiti State Public Officers (Protection) Law provides as follows:

“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, (he following provisions shall have effect: –

(a) the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the ceasing thereof.

Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

The proviso to Section 2 (a) of the Public Officers (Protection) Law does not apply to this case, However the provision of the law is very clear, and that is, where any action, prosecution or proceeding is commenced against any person, for any act done in pursuance or execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act neglect or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.

See also  Chief A.O. Nwosu & Anor V. Chukwurah Offor (1997) LLJR-SC

The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the stipulated period by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim vs JSC (1998) 14 NWLR (Pt. 584), at 32; Michael Obiefuna vs Alexander Okoye (1961) 1 ALL NLR 357; Fred Egbe vs Adefarasin (NO, 2) (1985) 1 NWLR (Pt 3) 549; Fadare vs A.G Oyo State (1982) NSCC 643.

For Section 2 (a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied: –

(1)It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law.

(2)The act done by the person is in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.

See Ekeogu vs Aliri (1990) 1 NWLR (Pt 126) 345.

The two conditions must be satisfied conjunctively before the protection under Section 2 (a) of Public Officers (Protection) Law will be invoked.

In the passage I have quoted elsewhere in this judgment, the lower court did hold that the Respondents are public officers who could benefit from the provisions of the law.

The Appellant has failed to appeal against that portion, of that judgment. The law is settled that a finding of a court against which there is no appeal is treated as admitted. See Odedo vs INEC (2008) 17 NWLR (Pt 1117) 554 at 630 paras B – C; Ilona vs Idakwo (2003) 11 NWLR (Pt 830) 53 at 83 paras E – F; Adejumo vs Ayantegbe (1989) 3 NWLR (Pt 110) 417; Okuoja vs Ishola (1982) 7 SC 314; Awote vs Owodunmi (1986) 5 NWLR (Pt. 45) 941; Atoyebi vs Gov., Oyo State (1994) 5 NWLR Z(Pt. 344) 290.

Even if there is an appeal against the decision that the Respondents are public officers, there would have been no merit in such appeal. The Black’s law Dictionary, 9th Edition at page 1351 defines Public Office as a position whose occupant has legal authority to exercise a government sovereign power for a fixed period. An officer is defined by the same dictionary at page 1193 as follows: –

“A person who holds an office of trust, authority or command. In public affairs, the term refers especially to a person holding public office under a national, state, or local government and authorized by that government to exercise some specific function.”

Part 11 of the 5th Schedule to the 1979 Constitution as well as Part 11 of the 1999 Constitution, of the Federal Republic of Nigeria have clearly set out a list of Public Officers for the purpose of the Code of Conduct. Governor, Attorney General and Local Government Council Chairman are listed in items 4, 6 and 13 of the 1979 and 1999 Constitution of Nigeria. It follows therefore that the Respondents are public officers within the provisions of the constitution of Nigeria.

Was the act of relocating the Local Government Headquarter from Eda-Oniyo to Iye-Ekiti done in execution of the States Creation Transitional Provisions Decree NO. 36 of 1996 and other laws which created Ilejemeje Local Government Area with its headquarter at Eda-Oniyo. The lower court in its judgment at page 499 of the record stated as follows: –

“They were at the material time engaged in the execution or intended execution of the constitution and other enactments for the purpose of governing Ekiti State and among others, Ilejemeje Local Government which was in the nature of public duty. To succeed against them, the respondents was obliged to have commenced the action within the stipulated time limit”

The headquarter of Ilejemeje was established by a statute, that is Decree NO. 36 of 1996. Its relocation could only be effected through another statute promulgated by the same competent authority. I have flipped through the record of this appeal and I have not found any evidence that Decree NO, 36 of 1996 has been repealed by a subsequent law that has relocated the headquarter of Ilejemeje Local Government from Eda-Oniyo to Iye-Ekiti. By arbitrarily relocating the Local Government Headquarter, the Respondents at the material time were not engaged in the execution or intended execution of the constitution and other enactments for the purpose of governing Ekiti State and Ilejemeje Local Government. On the contrary the Respondents acted in breach of the law that established the Local Government.

Public Officers (Protection) Law is meant to protect public officers who act in good faith as it does not apply to acts done in abuse of office with no semblance of legal justification. Public Officers Protection Law is used as a shield and not as a sword in protecting actors of acts that are done in accordance with the constitution and any other enactments, and it does not apply if it is established that the public officer had abused his position for purpose of acting maliciously. In that case, he has not acted bona fide and within the terms of the statutory or other legal authority. In such a state of facts he has abused his position for the purpose of doing the wrong thing, and the provision of the law will not apply to protect him.

In the instant case, the Respondents knew and had every reason to know that the location of Ilejemeje Local Government Headquarter at Eda-Oniyo was made through a statute and that same could be relocated only by statute. Their act of relocating the headquarter was done mala fide and without legal justification. The two conditions for making available to them the protection of Public Officers (Protection) Law of Ekiti State have not beer, satisfied conjunctively. The suit against the Respondents at the trial court was legitimately instituted and it is my firm view that the Respondents are public officers whose actions are not protected by the Public Officers (Protection) Law of Ekiti State.

This issue is resolved in favour of the Appellant and against the Respondents.

Having resolved the first issue against the Appellant, and the 2nd issue in the Appellant’s favour, this appeal shall be and it is hereby allowed in part. The decision of the lower court where it adjudged that the Public Officers (Protection) Law is available to the Respondents is hereby set aside and quashed.

By virtue of Order 8 rule 12(2) of the Rules of this court. I have the power to draw inferences of fact and give judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to cost. I in that behalf, find that the proper order the Court of Appeal would have made was to uphold the decision of the trial court based on the fact that the headquarter of Ilejemeje Local Government Area was a product of statute and that since no law has been validly promulgated that has relocated the headquarter of the Local Government aforesaid, the act of the Respondents had no legal basis. Since the lower court did not do so, I am in a position to uphold the decision of the trial court. To that extent and for the purpose of putting an end to the litigation in this case, it is ordered that the judgment of the trial court in this matter is hereby restored.

The Respondents shall pay to the Appellant the sum of one million naira (N1,000,000.00) as costs of prosecuting this appeal.


SC. 194/2008

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