[Practice and Procedure] – [Doctrine of Stare Decisis] – [Operation of]
ISSUES FOR DETERMINATION:
Whether the appointments of the appellants were statutory appointments in the eyes of the law in view of the clause in each of the appellants’ letters of appointment that stated that the appointments were at the pleasure of the Governor.
FACTS:
The appellants were appointed full-time Chairman and members respectively of the Ekiti State Independent Electoral Commission [E.S.I.E.C] by the then State Governor, Engr. Olusegun Adebayo Oni. The first paragraph of the letters of appointment dated 10th October 2008 issued to each one of the appointees, read:
“I am pleased to inform I am pleased to inform you that the Governor of Ekiti State, Engr. Olusegun Oni, has graciously approved your appointment as Full-time (Chairmen/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 15th October 2010 when his election was nullified by the Court of Appeal. On 22nd October 2010, the new Governor, Dr. Kayode Fayemi, dissolved all the commissions, boards and parastatals in Ekiti State, including the Ekiti State Independent Electoral Commission. The appellants heard the announcement of the dissolution on radio.
When the appellants were prevented from carrying out their functions, they instituted an action by way of originating summons at the High Court of Ekiti State seeking inter alia a declaration that the purported dissolution of the Ekiti State Independent Electoral Commission and termination of the appellants’ appointments as Chairman and members of the Commission by the respondents was unlawful, wrongful, illegal, unconstitutional, ultra vires, null and void, against the rules of natural justice and of no effect whatsoever and orders setting aside the purported dissolution of the Commission and reinstating the appellants. The respondents filed two notices of preliminary objection and a counter-affidavit in opposition.
In its judgment, the trial court overruled the respondents’ objections. The court held that the appointments of the appellants were with statutory flavour and fell within the purview of statutory appointments guided and regulated by the provisions of sections 197, 198, 199 and 201 of the 1999 Constitution. It further held that the phrase “at the pleasure of the Governor” in their letters of appointment was of no legal consequence and did not deprive them of the legal right under the Constitution.
The respondents being aggrieved appealed to the Court of Appeal. In allowing the appeal, the Court of Appeal found that the appointments of the appellants were made at the pleasure of the Governor who appointed them and held that the appointments were therefore inextricably tied to the subsistence of the administration of the appointor. The appellants were dissatisfied and they appealed to the Supreme Court. Appeal was dismissed.
HELD:
On implication of appointment at pleasure of Governor:
Any person who accepts appointment at the pleasure of a Governor can also be removed at the pleasure of the Governor. He serves at his pleasure for as long as he is pleased. In the instant case, the appellants were rightly removed by the Governor. The appointments were at the pleasure of the Governor and there was no record that their appointments were confirmed by a resolution of the House of Assembly of the State as required by section 198 of the 1999 Constitution (as amended). Their removal could not be subjected to the provision of section 201 of the Constitution.
On Meaning of “at the pleasure of the Governor”:
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”. The term is based on the concept that all legitimate authority for government comes from the Crown. Originating from the United Kingdom, the term is now used throughout the Commonwealth realms wherein the phrase is modified to be “at the Governor’s pleasure”. The length of service of such offices was made to cease when the Governor ceases to hold office.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- A.G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309)419
- A.G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt. 743) 706
- A.G., Rivers State v. A.-G., Bayelsa State (2013) 5 NWLR (Pt. 1340) 123
- Adedayo v. P.D.P. (2013) 17 NWLR (Pt. 1382) 1
- Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250
- Alao v. Akano (2005) 11 NWLR (Pt. 935) 160
- Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622
- Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290
- C.O.E., Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191) 423
- Chidoka v. First City Finance Corp. Ltd. (2013) 5 NWLR (Pt. 1346) 144
- Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361
- Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt. 1012) 544
- Evbuomwan v. Elema (1994) 6 NWLR (Pt. 353) 638
- Eze v. Gov., Abia State (2014) 14 NWLR (Pt. 1426) 192
- F.M.C., Ido-Ekiti v. Alabi (2012) 2 NWLR (Pt.1285) 411
- Fakuade v. O.A.U.T.H. C.M.B. (1993) 5 NWLR (Pt. 291) 47
- Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558
- Gov., Ekiti State v. Akinyemi (Unreported) Appeal No. SC.425/2011 of 26/4/2014
- Gov., Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95
- Gov., Kwara State v. Ojibara (2006) 18 NWLR (Pt.1012) 645
- Ibuluya v. Dikibo (1976) All NLR 316
- Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382
- Idoniboye-Obe v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589
- Izeze v. INEC (2018) 11 NWLR (Pt. 1629) 110
- K.S.U.D.B. v. Fanz Const. Co. Ltd. (1990) 4 NWLR (Pt. 142) 1
- Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401
- Obiuweubi v. C.B.N. (2011) 7 NWLR (Pt. 1247) 465
- Odi v. Osafile (1985) 1 NWLR (Pt. 1) 17
- Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24
- Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599
- Olatunbosun v. NISER Council (1988) 3 NWLR (Pt. 80) 25
- Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt. 1157) 83
- Olowu v. Olowu (1985) 3 NWLR (Pt. 13) 372
- Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384
- P.H.C.N. Plc v. Offoelo (2013) 4 NWLR (Pt. 1344) 380
- Race Auto Supply Co. Ltd. v. Akibu (2006) 13 NWLR (Pt. 997) 333
- Saraki v. F.R.N. (2016) 3 NWLR (Pt. 1500) 531
- Skye Bank Plc v. Akinpelu (2010) 9 NWLR (Pt. 1198) 179
- Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517
- U.B.N. Ltd. v Ozigi (1994) 3 NWLR (Pt. 333) 385
- U.M.T.H.M.B. v. Dawa (2001) 16 NWLR (Pt. 739) 424
- Udoh v. O.H.M.B. (1993) 7 NWLR (Pt. 304) 139
- Ugo-Ngadi v. F.R.N. (2018) 8 NWLR (Pt. 1620) 29
FOREIGN CASES REFERRED TO IN THE JUDGMENT:
- Courtney & Fairbairn Ltd. v. Tolaini Brothers (Hotels) Ltd. (1975) 1 WLR 297
- Scammell v. Ouston (1941) All ER 14
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Constitution of the Federal Republic of Nigeria, 1999 (as amended), Ss.171(6), 197, 198, 199(1), 200, 201(1)(2), 208(5)
- Evidence Act, S. 128
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
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. See Chidoka & Anor v. First City Finance Corp. Ltd. (2013) 5 NWLR (Pt. 1346) 144 and Ugo-Ngadi v. F.R.N. (2018) LPELR-43903(SC); (2018) 8 NWLR (Pt. 1620) 29 at p. 53 paras. E-F wherein Galinje, JSC, stated:
“Where a 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.”
In this case, the appellants did not provide this court with copies of its judgment in Governor, Ekiti State v. Chief George Ojo & Ors, and Governor of Ekiti State & Anor v. Chief Femi Akinyemi & Ors. They merely quoted what the Court of Appeal said in those cases, and there is nothing to indicate what principle this court affirmed. As Oputa, JSC so aptly observed in Fawehinmi v. N.B.A. (No.2) (1989) 2NWLR (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”.
Clearly, the issue of whether this court should apply or set aside its decision in Akinyemi’s case, is a moot point in this appeal. The appellants also submitted in their reply brief that with regards to the clause in their letter of appointment this court had “put paid to this issue” in Olufeagba v. Abdul-Raheem (supra) at p. 453, paras. F-G and they quoted the statement of Ogbuagu, JSC. therein as follows –
“I entirely agree. In the circumstances, the respondents will not be allowed by me or the court to ignore with impunity the law or Act that created them and purport to hide behind the letters of appointment and memorandum and purport to terminate the appointments of the appellants contrary to the clear and unambiguous provisions of section 15 of the Act.”
I have read the judgment in Olufeagba v. Abdul-Raheem (supra) and the appellants clearly quoted the statement of Ogbuagu, JSC, therein out of context. Yes, that case deals with the termination of appointments with statutory flavor but the issue of appointments being “at the pleasure of the Governor”, did not arise in that case. It is one thing to cite an authority, and another thing to apply it to a case since a decision is only an authority for what it decides, nothing more and each case is considered on its particular facts. In effect, the facts and circumstances of a case determines authorities counsel should cite to support his argument in court and the whole purpose of citing a case is for the law on the subject to become known. See Izeze v. INEC (2018) LPELR-44284 (SC); (2018) 11 NWLR (Pt. 1629) 110.
The question in this case is whether the appointments of the appellants as Chairman and Members of E.S.I.E.C. respectively, was done by the said Governor in line with the set-out procedure and a corollary question is: who has the burden of proving same? The respondents put the burden squarely on the appellants because, as they submitted, the appellants’ claims are predicated principally on declaratory relief, therefore, they had to establish that the appointments were made as statutorily stipulated before they could enjoy the benefits conferred by the statute in question
The legal burden on the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him, without relying on the evidence called by the defendant is well-settled. See A.G. Rivers State v. A.G. Bayelsa State & Anor (2012) LPELR – 9336(SC); (2013) 5 NWLR (Pt. 1340) 123 and Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at p. 374, paras. A-B, where this court per Mohammed, JSC (as he then was) observed:
“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.”
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 Commonwealth realms, wherein the phrase is modified to be “at the Governor’s pleasure.”
Be that as it may, given the letters of appointment issued to appellants in this case, wherein they were specifically informed that – ‘The appointment is at the pleasure of the Governor please”, two questions arise in this appeal. Firstly, did the said Governor act within his mandate when he “graciously approved” the said appointments at his “pleasure.” Secondly, and more importantly, can the appellants be said to have been validly appointed by the Governor in terms of the said appointment letters as worded?
As I pointed out earlier, the said offices into which they were appointed are offices regulated by section 198 of the Constitution, which deals with the appointment of Chairman and Members of State Commissions/Bodies established pursuant to section 197 and they include the E.S.I.E.C. The said section 198 provides that:
“Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.”
From this provision, it is clear that the appointment of a Chairman and members of the said E.S.I.E.C., is subject to confirmation by a resolution of the House of Assembly. This means that there can be no valid appointment unless the said confirmation by a resolution of the Ekiti State House of Assembly is first sought and received. Did the said Governor appoint the appellants under the said section 198 of the Constitution? This question cannot be answered without examining the instrument i.e. the letters of appointments through which they were appointed. The said letters clearly show that the Governor had appointed the appellants “at his pleasure”. A look at the said section 198 shows that no words are used to suggest that the Governor can appoint them “at his pleasure”. The Office of the Governor itself is a creation of the Constitution and like all such offices created, administrative law teaches that they act ultra vires once they act outside of their mandate/remit.
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. In this case, the appellants have no legs to stand as the said Governor acted beyond his powers in making their appointments “at his pleasure” and so the said appointments are null and void.
The end result is that this appeal lacks merit. It is dismissed. The parties are to bear their own costs.
Appeal Dismissed.
LIST OF COUNSEL:
Obafemi Adewale Esq., with Ezekiel Agunbiade Esq., Olubunmi Olugbade Esq.,
Adeyemi Adewumi Esq. – for the Appellants.
Owoeni Ayayi Esq., with Dolapo Kehinde Esq. – for the Respondents.