T. O. S. Benson Vs S. A. Onitiri (1960)
LawGlobal-Hub Lead Judgement Report
The appellant Mr. T.O.S. Benson and the respondent Mr. S.A. Onitiri both, on the 12th December, 1959, contested the Federal Election to the House of Representatives as candidates for Lagos North Constituency. Mr. Benson defeated Mr. Onitiri at the election and was duly returned.
On the 5th January, 1960, Mr. Onitiri, the defeated candidate, filed a petition praying the High Court of Lagos to declare that Mr. Benson was not duly elected or returned as he was not qualified to be elected because he was at all material times holding an office of emolument under the Crown as a member of the Lagos Executive Development Board and he was such a member on the day of the said election. The said Lagos Executive Development Board, hereinafter called the Board, the petition continued, is a body corporate incorporated directly by a law enacted by a legislature in Nigeria, and its members receive remuneration.
In reply to the petition so filed Mr. Benson, then the respondent, admitted that he was a member of the said Board but said that he had resigned his membership before the election the subject matter of the petition and before any time material to the said election.
The petition was heard by the High Court on the 16th and 17th February, 1960, and in a considered judgment on the 2nd March, 1960, the learned Judge declared that the respondent in the petition before him, namely Mr. Benson, who was returned as elected in the elections to the House of Representatives on the 12th day of December, 1959, was not duly elected, and that the election was void.
Mr. Onitiri, who also asked the Court in his aforesaid petition of the 5th January, 1960 to declare himself duly elected, was refused his prayer and was held not entitled to the seat.
Both of them were dissatisfied with the judgment of the learned Judge. The present appellant, Mr. Benson, has appealed against the judgment unseating him, and the present respondent, Mr. Onitiri, also held a cross-appeal stating that the learned Judge was wrong not to have declared in his favour that he was entitled to the seat.
The facts before the learned trial Judge which lead to the disqualification are succinctly as follows-:
In 1951, in exercise of powers conferred upon the Governor by section 3(3)(a) of the Lagos Town Planning Ordinance Cap. 103, Mr. T.O.S. Benson was appointed a member of the Board. The Board is a body corporate incorporated by a law enacted in Nigeria – see section 3(8) of the Ordinance. From the year 1957 members of the Board, other than officials, have been paid emoluments of £400 each per annum. As will be seen from the instruments of appointment, Exhibit 1, Mr. Benson was appointed an additional member under section 3(3) of the Ordinance. It would appear that an additional member to the Board is appointed for such period or for such purpose as shall be specified in the instrument appointing him. The subsection reads:-
‘(3) Notwithstanding the provisions of subsection (2) the Governor may at any time by notice in the Gazette: (a) appoint additional members to the Board for such period or for such purpose as shall be specified in the notice.
The notice of appointment referred to, Exhibit 1, did not state for what period Mr. Benson was appointed, nor indeed for what purpose.
The power of appointment by the Governor has been amended and the power is now vested in the Minister for Lagos Affairs.
The House of Representatives was constituted by the Nigeria (Constitution) Order in Council, 1954, and by s. 10(1)(d) of that Order it was provided that no person should be qualified to be elected as a Representative Member of the House of Representatives who held, or was acting in, any public office, a public office being defined in s.2 as meaning any office of emolument in the public service of the Federation or the public service of a Region. By s.6(1) of the Nigeria (Constitution) (Amendment No.2) Order in Council, 1957, which came into operation on the 30th August, 1957, s.10(1) (d) of the principal Order was amended so as to disqualify any person who holds, or is acting in, any office of emolument under the Crown, and a new subsection (3) was added to s.10, paragraph (c) of which provided that for the purposes of subsection (1) the office of any member of any body corporate Incorporated by a law enacted by any legislature in Nigeria should, except as otherwise provided in any law made under paragraph (b) of the subsection, be deemed to be an office under the Crown. By virtue of s.14 of the principal Order, this would have caused the seats of a number of the members of the House to become vacant immediately, and a saving clause was inserted, in s.6(2) of the amending Order, under which a Representative Member of the House of Representatives who, immediately before the amendment came into operation, was holding or acting in an office of emolument under the Crown was exempted from the extended disqualification introduced by s.6(1) of the amending Order, but only until his seat in the House became vacant or subsisting appointment to the office in question expired or was terminated. Subsequent amendments to s.10 of the principal Order have not affected the position as regards the disqualification arising from membership of the Board.
In 1959, therefore, when Mr. Benson sought election to the House of Representatives, unless he had resigned his membership of the Board he would have been disqualified if elected. It appears that Mr. Benson realised that to continue as a member of the Board might disqualify him. He therefore wrote a letter (Exhibit 3) to the Chairman of the Board. It will be convenient at this point to set out in full the contents of the letter. It ran as follows:-HONOURABLE T.O. SHOBOWALE BENSON, B.L., M.H.R.,
17 Customs Street,
Phone: 20417Lagos, Nigeria,
Residence: 4469018th November, 1959.
Lagos Executive Development Board,
Reclamation Road, Lagos
By virtue of section 10(1) and 10(3c) of the Nigeria Constitution Order in Council 1954, a person who holds or is acting in any office of emolument under the Crown, is disqualified for Representative membership of the House of Representatives. In the circumstances therefore, I hereby resign my membership from the Lagos Executive Development Board.
I may however mention in passing that the two Lagos members were permitted to remain members of the Board whilst retaining their Seats as members of the old Legislature this was then regarded as an exemption.
If the exception and or privilege still stands, then this resignation is of no avail and should be discountenanced.
(sgd.) T.O.S. BENSON
HONOURABLE T. O. S. BENSON
The letter (Exhibit 3) was received and acknowledged by the Board. On the 19th November, 1959 the Secretary to the Board, acting on instructions, sent copies with a covering letter to the Ministry of Lagos Affairs – see Exhibits 2 and 2A. The Board itself, it would appear, at its meeting of the 9th December, 1959, considered the notice of resignation (Exhibit 3), accepted it as from the date it was written, namely 18th November, 1959, paid Mr. Benson up to that date and thanked him for his past services (see Exhibit 4).
The first point which Mr. Kayodo, counsel for Mr. Benson, sought to argue before the learned trial Judge was the legal validity of Mr. Bensons appointment: namely, that the appointment in Exhibit 1 was not in accordance with the section of the Ordinance creating the appointment. Counsel was however not heard upon this point by the learned Judge, who stated that Mr. Bensons membership of the Board was not an issue on the pleadings. This Court itself, at one stage, was of the same view as the learned trial Judge, but, later, Counsel on both sides were allowed to argue before us on the issue, it not being seriously suggested that any relevant evidence was not before the Court.
The other two issues which were argued before us were on the findings of the learned Judge, namely that the appellant, Benson, cannot resign his post on the Board and that in fact he did not resign.
Six grounds of appeal were filed on behalf of the appellant Benson. At a later stage, leave was sought and granted to argue two additional grounds. The eight grounds of appeal were argued on behalf of the appellant, Benson. They are as
1. ‘The learned trial Judge erred in law in holding that the Minister of Lagos Affairs was solely the person competent to accept the Respondent/Appellants resignation when there is no statutory provision to that effect.
2. The learned trial Judge erred in law in holding that the Respondent/Appellants resignation to the Board was Ineffective and of no avail.
3. The learned trial Judge erred in law in holding that the acceptance of the Respondent/Appellants resignation by the Minister of Lagos Affairs was ineffective at all material times.
4. The learned trial judge erred in law in holding that the Respondent/Appellant did not resign and could not resign.
5. The learned trial Judge erred in law in holding that the Respondent/Appellant could not take the point that the Respondent/Appellant was not duly appointed to the Lagos Executive Development Board.
6. That the learned trial Judge misdirected himself on the evidence before him when he held that there was no evidence that Mr. Benson had resigned his seat on the L.E.D.B. when in fact there was the evidence of the Minister of Lagos Affairs that he had received the copy of the letter of resignation and accepted the said resignation as effective from 18th November, 1959.’
1. ‘The learned trial Judge erred in law in holding that the Respondent/Appellant could not take the point that he was not duly appointed to the Board, and that the trial Judge should have held that the Appellants purported appointment as an additional member of the Board was invalid for non-compliance with the requirements of section 3(3) of the Ordinance and that by reason thereof the Appellant was not a member of the Lagos Executive Development Board at any material time.
2. That the learned trial judge erred in law in holding that at any material time Benson held an office of emolument under the Crown in that the evidence showed that at the material time such office (if any) as Benson held was not an office of emolument.
‘For the cross-appeal, Chief Rotimi Williams for the Respondent Onitiri filed and argued three grounds on which he relied. They are as follows:
1. ‘The learned trial Judge erred in law in holding that notice of the disqualification of the Appellant ought to have been given to the electorate before he could declare the Petitioner elected.
2. The learned trial Judge erred in law in refusing to declare the Petitioner elected and returned once he had arrived at the conclusion that the Appellant was not qualified to be a candidate.
3. The learned trial judge erred in law in applying decisions based on the English Common Law to this petition when the Common Law is not part of the electoral law of Nigeria.’
Arguing the 1st additional ground of appeal together with the 5th initial ground, Mr. Kayode, for the appellant, admitted that Benson did not at any time, on the face of the instrument of his appointment (Exhibit 1), say that he was not duly appointed, but he submitted that as the instrument was put in evidence by Onitiris counsel, the matter of his (Bensons) appointment was then at large and it was therefore open to him to question tile validity of the appointment on the ground that it was not stated in Exhibit 1 for what purpose Benson was appointed, or the duration of such appointment, as required by section 3(3)(a) of the Lagos Town Planning Ordinance aforesa
Other Citation: (1960) LCN/0865(SC)