⦿ CASE SUMMARY OF:
Major General Kayode Oni (Rtd) & Ors v. Governor Of Ekiti State (2019) – SC
1. Major General Kayode Oni (RTD)
2. Chief (Mrs.) Tola Ajayi
3. Tayo Awopeju
4. Sesan Akinola
5. Odutola Babatunde
1. Governor Of Ekiti State
2. Attorney General, Ekiti State
⦿ LEAD JUDGEMENT DELIVERED BY:
Amina Adamu Augie, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The Appellants were appointed full-time Chairman and Members respectively of the Ekiti State Independent Electoral Commission [E.S.l.E.C.] by the State Governor. The first paragraph of the letters of appointment, dated 10/10/2008 and issued to each one, reads: I am pleased to inform you that the Governor of Ekiti State, Engr. Olusegun Adebayo Oni has graciously approved your appointment as Full-time [Chairman/Member] State Independent Electoral Commission with effect from 8/10/2008. The appointment is at the pleasure of the Governor please. The tenure of Engr. Olusegun Adebayo Oni as Governor ended on 15/10/2010, when his election was nullified by the Court of Appeal. After the then new Governor, Dr. Kayode Fayemi came on board, the Appellants, on 22/10/2010, heard an announcement on radio that the new administration had dissolved all the Commissions Boards and Parastatals in Ekiti State, including the said E.S.I.E.C. When they were prevented from carrying out their functions, they instituted an action by way of Originating Summons praying the Ekiti State High Court to determine the following questions:
1.Whether the Plaintiffs, who are Chairman and Members of the ESIEC constituted under Sections 197 and 198 of the Constitution of the Federal Republic of Nigeria,1999, can be removed or their tenure terminated and the Commission dissolved by the Defendants otherwise than in accordance with the provisions of Sections 199 and 201 of the Constitution of the Federal Republic of Nigeria.
2. Whether the Defendants, who are the Executive Governor of Ekiti State and Chief Law Officer of the State, have the powers to dissolve the E.S.I.E.C and relieve the Plaintiffs of their appointments without regard to Sections 199 and 201 of the Constitution of the Federal Republic of Nigeria.
3. Whether the Defendants are not bound by the provisions of the Constitution of the Federal Republic of Nigeria, 1999, in their decisions and actions concerning the Plaintiffs.
4. Whether the purported dissolution of the E.S.I.E.C and termination of the appointments of the Plaintiffs as Chairman and Members respectively was not a violation of the provisions of Sections 199 and 201 of the 1999 Constitution of Nigeria and thereby ultra vires and null and void.
5. Whether the radio announcement by Defendants on 22/10/2010 dissolving all Commissions Boards and Parastatals in Ekiti State is not ultra vires, null and void in so far as it relates to the E.S.I.E.C.
WHEREOF, Appellants as Plaintiffs, sought the following reliefs:
1. A DECLARATION that the purported dissolution of the E.S.I.E.C and termination of the Plaintiffs appointment as Chairman and Members of the Commission by the Defendants alongside all other Commissions, Boards and Parastatals vide a radio announcement on Friday,22/10/2010 is unlawful, wrongful, illegal, unconstitutional, ultra vires, null and void against the rules of natural justice and of no effect whatsoever
2. AN ORDER setting aside the purported dissolution of the E.S.I.E.C.
3. AN ORDER of injunction restraining the Defendants from dissolving the E.S.I.E.C. or terminating the appointments of the Plaintiffs as Chairman and Members respectively of the E.S.I.E.C until the end of their 5-year tenure as guaranteed by the 1999 Constitution except otherwise in accordance with the provisions of the Constitution.
4. AN ORDER re-instating the Plaintiffs as Chairman and Members of the E.S.I.E.C forthwith.
The Respondents, as Defendants, filed two Notices of Preliminary Objection and a Counter Affidavit in opposition.
In his Judgment delivered on 14/6/2012, the learned trial Judge. J. O. Adeyeye. J., overruled the Respondents’ Objections and concluded as follows: “The appointment of the Plaintiffs is one with statutory flavor as the conditions of appointment and procedure for their removal are clearly stated in the Constitution. Having said that the phrase contained in the letters of appointment… is of no legal consequence and that the inclusion of the phrase ‘at the pleasure of the Governor’ did not deprive them of the legal right under the Constitution, I hold the view that the appointment of the Plaintiffs falls within the purview of statutory appointments guided and regulated by the provisions of Sections 197, 198, 199 and 201 of the 1999 Constitution.
The Respondents appealed. In allowing the Appeal, the Court of Appeal stated as follows in its Judgment delivered on 26/3/2013: “it must not be forgotten that the appointments were made at the pleasure of the Governor, who appointed them. They are bound to swim or sink together. You cannot put something on nothing and expect it to stay there. It will collapse.”
In the Court of Appeal’s view, the Appellants herein were not independently elected into office like legislators at the Federal and State levels or Councilors at the Local Government level. The appointment of [Appellants herein] was therefore inextricably tied to the subsistence of the administration of the Appointor.
The Appellants, dissatisfied with Court of Appeal’s decision, appealed to this Court.
1. Whether the lower Court was wrong in holding that the Appellants’ appointments did not enjoy statutory flavour and thereupon gave Judgment to the Respondents in the light of the facts and circumstances of this case.
⦿ HOLDING & RATIO DECIDENDI
1. FOR ISSUE 1, THE SUPREME COURT GAVE JUDGEMENT AGAINST THE APPELLANTS. IT HELD THAT THEIR APPOINTMENT HAD NO STATUTORY FLAVOUR.
i. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where Plaintiff fails to establish his entitlement to the declaration by his own evidence. That is the position of the law and that is the clincher that seals the Respondents’ position that the Appellants failed to establish that the said appointments as Chairman and Members respectively of the E.I.E.S.C. were made in compliance with the 1999 Constitution. The first relief sought by the Appellants at the trial Court was for: “A DECLARATION that the purported dissolution of the E.S.I.E.C. and termination of [their] appointment as Chairman and Members of the [E.S.I.E.C] by [Respondents] alongside other Commissions, Boards and Parastatals vide a radio announcement on Friday 22/10/2010 is unlawful, wrongful, illegal, unconstitutional, ultra vires, null and void, against the rules of natural justice, and of no effect whatsoever. They instituted a declaratory action, and had the onus to establish that the said appointments approved by the then State Governor, were confirmed “by a resolution” of the State House of Assembly, as stipulated in Section 198 of the 1999 Constitution (as amended). The Respondents are right, they failed to discharge the burden of establishing that they are entitled to the declaratory relief sought.
ii. There is no evidence or material provided by the Appellants to show that their appointments were subsequently confirmed by a Resolution of the Ekiti State House of Assembly. So as couched, the letters of appointment conveyed exactly what was said there that their appointments were “at the pleasure of the Governor”, therefore, they served at his pleasure for as long as he is pleased. The term “at the pleasure of the Governor” is an offshoot of the phrase at her “Majesty’s pleasure”, which is a Legal term of art, referring to the indeterminate or undetermined length of service of certain appointed officials or the indeterminate sentences of some Prisoners at the Queen’s pleasure, or when applicable at “His Majesty ‘s pleasure or King’s pleasure” and the said term is based on the concept that all legitimate authority for government comes from “the Crown”. Originating from the United Kingdom, the said term is now used throughout the Common Wealth realms, wherein the phrase is modified to be “at the Governor’s pleasure”.
iii. Since the 1999 Constitution makes these specific provisions as to when the President and the Governor can make appointments at their pleasure, it cannot be that the intention of the framers of the Constitution is to allow the appointments under Section 198 to be at their pleasure, and it follows that the Appellants’ appointments by the said Governor was made ultra vires. So, it is null and void. It is settled that for artificial entities, including governmental offices (and the Governor in this case), the rule is that all acts are prohibited except specifically permitted. Thus, in appointing the Appellants into the offices regulated by the said Section 198 of the Constitution “at his pleasure”, the Governor went outside of his mandate and acted ultra vires. This being so, the Governor did not act lawfully as to bestow on the Appellants any valid appointment. The Appellants cannot claim to have been validly appointed as to seek the reliefs they presently seek. The said Governor had no authority to appoint the Appellants into the offices covered by Section 198 of the 1999 Constitution. Section 198 requires that the “appointment shall be subject to confirmation by a resolution of the House of Assembly of the State”. The confirmation of their appointments by a resolution of the Ekiti State House of Assembly is a condition precedent for the validity of the said appointments, since this condition was not met, their appointments were invalid.
S. 198, 201 of the CFRN 1999;
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
As Oputa JSC, so aptly observed in Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, it is good to call the Court’s attention to its pronouncements in a previous case, but the facts of the case must be the same or similar before a decision in one can be used and even at that, used as “a guide to the decision in another case.”
⦿ NOTABLE DICTA
It is an elementary principle, very elementary that Counsel, who wants the Court to make use of the authorities cited in Court, must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon. – Augie, J.S.C. Oni v. Ekiti State (2019)
Where counsel cites a case that has not been reported, he owes the Court a duty to produce a copy of the Judgment if he wants the Court to rely on such authority. Where copies of the Judgment are not produced, the Court will have nothing to rely upon. – Augie, J.S.C. Oni v. Ekiti State (2019)
It is the facts of any particular case that will frame the issues for decision and the facts of two cases must be the same or at least, similar before the decision in one case can be used as a guide to the decision of another case. – Augie, J.S.C. Oni v. Ekiti State (2019)
So far so good, the appointment of Chairman and Members of the State Independent Electoral Commission, established by Section 197 of the 1999 Constitution (as amended), is governed by statute and any such appointments can be said to have statutory flavor. – Augie, J.S.C. Oni v. Ekiti State (2019)