The Governor Of Kwara State & Anor V. Alh. Issa Ojibara & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
OGUNTADE, J.S.C.
The simple question to be answered in this judgment is: In what circumstances are the Chairman and members of a State Independent Electoral Commission removable from office Section 201(1) and (2) of the 1999 Constitution which governs the procedure for such removal provides thus:
“201 – (1) Any person holding any of the offices to which this section applies shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
(2) This section applies to the offices of the Chairman and members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.”
A careful reading of section 201 above reveals that the section only provides two grounds for the removal of the chairman and members of the three commissions mentioned in sub-section (2) of section 201. The grounds are:
(1) Inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause).
(2) Misconduct.
Under the first ground above, the Constitution attempts, in the phrase under brackets, to explain the nature of the occurrences which may result in the inability to discharge the functions of the office. Another way to couch the ground in my view is “inability to discharge the functions of the office for any cause” or for infirmity of mind or body. It seems to me that the essence and effect of the ground is that the holder of the office is removable if for any reason, he is unable to discharge the functions of the office. The mention of “infirmity of mind or body” is a manner of expressing that health indisposition will not be accepted as excuse for the inability to discharge the functions of the office. This is because the phrase “any other cause” is embracive and much more extensive in scope than infirmity of mind or body.
With the above in the background, it is apposite to now consider the facts leading to the dispute out of which this appeal arose. The respondents were the plaintiffs at the Ilorin High Court of Kwara State. They issued an originating summons against the appellants (as the defendants) claiming the following reliefs:-
“1. A declaration that the purported dissolution of the State Independent Electoral Commission and termination of the plaintiffs appointments as Chairman and members by the defendants is unlawful, wrongful, illegal, unconstitutional, ultra vires, null and void and of no effect whatsoever.
- A declaration that the letter dated 10/6/2003 written by the defendants to the plaintiffs conveying the dissolution of the Commission is wrongful, unlawful, illegal, unconstitutional, ultra vires, null and void and of no effect whatsoever.
- An order setting aside the purported dissolution of Kwara State Independent Electoral Commission.
- An order of injunction restraining the defendants from dissolving the Kwara State Independent Electoral Commission or terminating the appointments of the plaintiffs as Chairman and members respectively until their 5 years tenure as guaranteed by the 1999 Constitution.
- An order re-instating the plaintiffs as chairman and members of the Kwara State Independent Electoral Commission.”
The questions they wished the High Court to answer are these:
“1. Whether the defendants who are the Executive Governor of Kwara State and the chief law officer of the State have the powers to dissolve the Kwara State Independent Electoral Commission and thereby relieve the plaintiffs of their appointments having regard to S.197 and 199 of the 1999 Constitution of the Federal Republic of Nigeria.
- Whether the defendants are not bound by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 in their decisions and actions.
- Whether the dissolution of the Kwara State Independent Electoral Commission and termination of the appointment of the plaintiffs as chairman and members respectively was a violation of the provisions of S.197 of the 1999 Constitution of Nigeria and thereby ultra vires and null and void.
- Whether the letter dated 10/6/2003 written to the plaintiffs severally by the secretary to the Kwara State Government acting for the defendants is not ultra vires, null and void.”
The relevant facts are these. The respondents were appointed as members of the Kwara State Independent Electoral Commission on 27/11/2001. The 1st respondent was appointed the Chairman of the Commission. Under Section 199 of the 1999 Constitution of Nigeria, they were to enjoy a tenure of five years. However on 10/6/2003, the appellants by a letter of that date, communicated to the respondents, the dissolution of the commission with immediate effect. The respondents were directed to hand over the Commission’s properties in their custody.
In these circumstances, the respondents issued an originating summons claiming as earlier stated in this judgment. Parties filed affidavit evidence. The counter-affidavit filed by the appellants revealed their supposed defence to the suit. Paragraphs 6-9 of the counter-affidavit read:
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