⦿ CASE SUMMARY OF:
Governor, Ekiti State & Ors. v. Chief George Femi Ojo & Ors. (2005) – CA
by PipAr Chima
⦿ LITE HOLDING
Where statute governs the employment of an employee, such employee can only be removed from office in accordance with the said statute.
Local government commission
GOVERNOR, EKITI STATE
ATTORNEY-GENERAL, EKITI STATE
CHIEF GEORGE FEMI OJO
CHIEF C. A. OWOLABI
CHIEF (HON.) J. A. AIYEDUN
CHIEF J. F. OLUSUYI
PRINCE A. A. ADEFOLALU
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– A. L. Ogunmoye.
* FOR THE RESPONDENT
– Chief Makanjuola Esan, (SAN).
The action was commenced, by the respondents as plaintiff, by originating summons in which declarations were sought from the trial court as follows:
(i) Declaration that under the terms of their membership of the Local Government Service Commission as contained in the Local Government Service Commission Law No. 2 of 2000 and their respective letters of appointment, they are entitled to continue in office as chairman and members of the commission until 15th December, 2005 unless removed for good cause. Declaration that the purported removal of the plaintiffs from their respective offices via the dissolution of the boards of all parastatals, agencies and commissions as contained in circular letter EK/P&E/11/46 of 2nd June, 2003 as well as individual letters dated 13th June, 2003 is illegal, unconstitutional, against the rules of natural justice, null, void and of no effect. Declaration that the plaintiffs are entitled to receive the salaries and allowances attached to their offices as chairman and members of the Local Government Service Commission of Ekiti State up till 15th December, 2005.
Injunction restraining the defendants from treating the plaintiff’s appointments as chairman and members of the Local Government Service Commission of Ekiti State as having come to an end or appointing other persons to replace them and the duties of their offices. Or in the alternative: An order for payment to the plaintiffs, the total of all remunerations due to them up till and including 15th December, 2005 as damages for premature removal from office”.
1. Whether because of the letters of appointment of the plaintiffs referred to the appointment having been made in accordance with the Ekiti State Local Government Service Commission Law No. 2 of 2002, which does not exist, the appointment should be treated as nullity or the Judge had powers to apply the correct law of the state applicable to the appointment and removal of the plaintiffs inspite of the error in citation by the 1st defendant in his letter renewing the appointment of the plaintiffs.
2. Whether the respondents employment has statutory flavor?
3. Whether the lower court was right in relying on inadmissible evidence to award damages to the plaintiffs/respondents.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the light of all that I adumbrated above, I am of the firm view that the appointments of the respondents,made pursuant to the Local Government Service Commission Law No. 2 of 2002, a non-existent law, was a mistake and a typographical error which does not nullify their claim.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I am of the considered opinion, my lords, based on the authorities of the two cases stated supra even if nothing happened by way of renewal of the plaintiffs employment after 16th December, 2002, the fact of keeping them in office, utilizingt heir services and paying them the emoluments of the office will raise a presumption of a valid renewal of their appointments under section 3 of the Local Government Service Commission Law, 2000 and operate as estoppel against any contention by the defendants/respondents to the contrary. I therefore hold with ease that the contention that the renewal of the appointments of the plaintiffs/respondents were null and void because they were expressed to have been made under the Local Government Service Commission Law of 2002 rather than the Local Government Service Commission Law of 2000 which regulated their conditions of service unattainable.
ii. It is to be observed that the defendants not only pleaded in paragraph 3(iii) of their counter-affidavit that the conditions of service of the defendants were regulated by the Local Government service Commission Law, 2000. They went further to exhibit a copy of the said law. That being the case, there can be no doubt that the appointment of the plaintiffs/respondents is one with statutory flavour and their conditions of employment (including the procedure for their removal is regulated by statute). That being the case, the contract is determined not by the parties but by the statutory conditions governing its determination.
iii. May, I say, my lords at this juncture that in the light of all that I have been saying this issue must be resolved in favour of the respondents against the appellants and I so hold. The lower court was right in holding that the removal of the respondents from office must be in compliance with the Local Government Service Commission Law No. 2 of 2000.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Documents are classified in section 109 and 110 of the Evidence Act as Public and Private Documents. Section 109(a) defines public documents as documents forming the acts or records of the acts of:- the sovereign authority official bodies and tribunals of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere. The definition of a public document stated supra does not cover classified and confidential communication between the government and its employees which are not meant for public consumption and or which all or any interested members of the public cannot just go to the records section of any office and ask to be supplied with certified true copies of it on payment of the prescribed fees. Exhibit O, is a letter addressed to a limited number of persons and the annexure which is exhibit P specifically indicated that it is secret , which means that the circulation is restricted to those to whom it is addressed and it is not meant for public consumption.
ii. On exhibit P, it is specially indicated that it is secret which means that the circulation is restricted to those to whom it is addressed and not meant for public consumption. One thing that is obvious from the provisions of section 111 of the Evidence Act is that the provision does not cover classified and secret communication of government with limited circulation to top government functionaries, which were deliberately marked “secret” to indicate the confidentiality, and limited access, which the public should be to it. That being the case, I hold without any hesitation that exhibits O and P are not public documents and the trial Judge was right in treating them as such.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
Section 3(1) of the Local Government Service Commission Law proves that:- “A member of the commission shall, unless he resigns his appointment or is removed, hold office for a period of 3 years from the date of his appointment and may be reappointed only once”.
Section 4(1) of the Local Government Service Commission Law is complied with, the said section provides that: “Subject to the provisions of any other law, the Governor may remove any member of the commission from office for inability to discharge the functions of his office, whether arising from infirmity of mind or body or any other cause or misconduct”.
⦿ REFERENCED (CASE)
Ahmadu Bello University v. Molokwu (supra) it was held thus:- “It is unnecessary for parties to join issue on a point of law or statutory provisions once a statutory provision is found applicable, it would be applied by the court notwithstanding that parties have not joined issues on the point in their pleading.” The defendants/appellants just as in the present appeal contended that the law relied upon did not exist and therefore the plaintiffs/ respondents’ action must fail. The court in rejecting the contention held at page 286 that: “There is substance in the submission of the learned counsel for the appellant that there is no statute of Ahmadu Bello university know as Ahmadu Bello university calendar of 1986/1988. The reference may be one of lapsus calami . But if learned counsel’s objection is sustained. It would tantamount to giving reigns to technicality. Furthermore, if the submission is acceded to, it would be tacit acceptance and encouragement to reinstate the principle of law that law or statute or part thereof should be pleaded”.
In the case of Galadima v. Tambai (supra) the court while upholding the power of the court to take notice of and apply all relevant laws or enactments including subsidiary legislation, it added that the court can even do so without calling on both counsel to address it before doing so.
Ochoga v. Military Administrator, Benue State (2001) 1 NWLR (Pt. 695) page 570 at page 582, it was held thus: “If a party is entitled to a remedy or a relief and it is rightly claimed, he does not lose same by applying for it under a wrong law. This is because the trial court can, in the interest of justice, use the applicable law.”
Iloabachie v. Phillips (2002) FWLR (Pt. 115) 726 , (2002) 14 NWLR (Pt. 787) page 264 at 288 it was held thus:- “A party cannot rely on and take the benefits of the acts of body or the contents of a document and at the same time turn round to question the legality of the same acts of the self-same body or the contents of same documents.”
Otto v. Mabamije (2004) 17 NWLR (Pt. 903) page 489 at page 504, (2005) All FWLR (Pt. 262) 597, this court held as follows:- “By virtue of section 51 of the Evidence Act, when one person by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act on such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such representative in interest to deny the truth of that thing.”
Ondo State University v. Folayan (1994) 7 NWLR (Pt. 667) page 34 at page 61, the university had appointed Dr. Folayan for a probationary period of three years. Without extending the tenure of Dr. Folayan, they continued to use his services and pay him his salaries for three years. The Supreme Court held that the university was estopped from contending that the employment had come to an end at the end of the three years probationary period.
NEPA v. Ango (supra) it was held as follows:- “An employee of an employer with statutory flavour has no right to terminate his appointment at will because the employee does not hold the appointment at the pleasure of such an employer. To determine the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held to be ineffectual and void.”
Obeta v. Okpe (1996) 9 NWLR (Pt. 473) page 401 at pages 433 – 434, it was held thus:- “The proposition of law that a person appointed to a post for a term by statute has right to serve out his statutory term of his appointment is correct. He cannot be removed from the office by any person during the period except for a misconduct or when the, master body or institution he is appointed to serve dies or ceases to exist.”
Igbe v. Govenor Bendel State (1983) 1 SCLR page 73, where, as in this case, the chairman and members of the civil service commission of Bendel State were removed from their offices without compliance with the relevant statutory provisions, the Supreme Court awarded damages in lieu of reinstatement because reinstatement was not appropriate in the circumstances. Again, in contracts of employment with statutory flavour, the court would however grant damages as relief where there is evidence of situation and circumstances which makes it impossible to order reinstatement.
Paye v. Gaji (1996) 5 NWLR (Pt. 450) page 589 at page 605, it was held thus:- “It is settled law that specific performance being an equitable remedy should not be ordered where damages will be adequate to meet the justice of the case”.
Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) page 243 at paragraphs 288/289, it was held thus:- “Judges are required to keep abreast of time and not to live in complete oblivion to happenings around them. They are to keep pace with the time.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
It is also settled beyond doubt that by virtue of section 74 of the Evidence Act, the facts which a court is enjoined to take judicial notice of include all laws or enactments and any subsidiary legislation made thereunder. – Abdullahi JCA. Ekiti v. Ojo (2005)
Now, it is settled law that to grant an injunctive relief is entirely at the discretion of a court. It is also settled that whenever a court is called upon to exercise its discretion, it must exercise it judicially and judiciously. – Abdullahi JCA. Ekiti v. Ojo (2005)
Where in a counter- affidavit, a respondent makes some feeble and shallow averments in denial of specific facts in an affidavit such averments are mere general denial which are ineffective as challenge to serious averments made against him. – Abdullahi JCA. Ekiti v. Ojo (2005)
It is to be observed that there is evidence before the court that the plaintiffs appointments were renewed for a three year second term on December 16, 2002 and was to last till 15th December, 2005. The only condition under which they could vacate office before that date is either if they resign their appointment or they are removed from office in accordance with the provisions of the Local Government Service Commission Law, 2000. – Abdullahi JCA. Ekiti v. Ojo (2005)
⦿ SIMILAR JUDGEMENTS