Cause Of Action: How Determined (II)

On Nature of appointment of chairman and member of Ekiti State and Procedure for removal from office – The appointment of the Chairman and members of the Local Government in Ekiti State has it root form a statutory provision. It has its origin in section 3(1) of the Local Government Service Commission Law 2000 and can only be terminated according to the provisions of section 4 (1) of the said law. It is an appointment with statutory flavor. In the instant case, the respondents’ appointment could only be terminated by complying with the procedure laid down in the statutory provisions. The Ist appellant therefore acted ultra vires his powers. The termination of the respondents’ appointment in the circumstances in which it was done was null and void and of no effect whatsoever, and the trial court was right in so holding. (Ojibara V Gov., Kwara State (2004) 30 WRN 26 referred to.) Pp. 415, para. G; 416, paras. C-E).

On procedure for removal from office Chairman and members of Ekiti State Local Government Service Commission.

By virtue of section 4 (1) of the Ekiti State Local Government Service Commission Law No. 2 of 2000, subject to the provision 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 infirminity of mind or body or any other cause or misconduct. In the instant case the respondents were removed from office via a Radio Announcement on 22nd October 2010 announcing the dissolution of all Commission Board and parastatals in Ekiti State, including the Local Government Service Commission, contrary to the provision of section 4 (1) of the Local Government Service Commission Law. (Pp. 414-415,paras. G-A).

On Ratio decidendi in Olaniyan v. University of Lagos – The ratio decidendi of Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 is that where there are clear statutory provision governing the relationship of master and servant, the only way to terminate the contract of service of the servant is by complying with the procedure laid down in the statutory provision. (Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 referred to.) P. 403, paras. B-C) Per ABBA AJI, J. C.A. at pages 402-403, paras. F-B:

“The learned Attorney General placed heavy reliance on the case of Olaniyan v. University of Lagos (supra) to drive home his argument that an appointment “at the pleasure of Governor” means that the appointee could be dismissed graciously at will without recourse to any other thing notwithstanding the law under which the appointment was made. The respondents would therefore have no cause of action. With the due respect to the learned Attorney General, this view is a clear misconception of the decision of the Supreme Court in the Olaniyan v. University of Lagos case and a misapplication of the principle decided therein. The case did not decide that where an employee or appointee holds office at the pleasure could be dismissed at will in that no employee or appointee of Government holds office at the pleasure. There is no appointment that could be at the pleasure of the Governor unless it is a master/servant relationship under the common law, where the master could dismiss the servant at will with or without any reason at all”.

On Distinction between contract of employment on private sector and State or government.

In the private sector, the power to employ originates from the common law, while the power of the state or government to employ is regulated or founded on statute. In that respect, the legal relationship of the rights and duties between the employer and the employee are imposed by the public law and not by mere agreement of the parties. The relationship between the Government and its Servant is therefore not like in an ordinary contract of service between a master and his servant. The legal relationship goes beyond that. It is something in the nature of status, and the duties or the status of the employer and the employee are fixed by law and in the enforcement of those rights and dueis, the society at large, in my view, has an interest. (Amasike v. Reg. Gen., C.A.C. (2010) 13 NWLR (Pt. 1211) 337; Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384 referred to.) P.419, paras. A-C)

On Nature of appointment of public officer and procedure for termination

The origin of government services is contractual. There is an offer and acceptance in every case. But once appointed to his post or office, the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules. In other words, the legal position of the government servant is more one of statute than of contract. The hallmark of statute is the attachment to the legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The relationship between the government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of statute . It is much  more than a purely contractual relationship voluntarily entered into between the parties. The duties or status are fixed by the law and in the enforcement of those duties, society has an interest.

In the instant case, the appellants being creatures of the Constitution of the Federal Republic of Nigeria, 1999 have a duty to obey all laws validly made in the exercise of legislative powers of the House of Assembly. To that end, in the exercise of his powers to appoint, promote, discipline or remove the respondents as members of the Ekiti State Local Government Service Commission, the Ist appellant was under a duty to observe and ensure the observance of the Ekiti State Government Service Commission Law, No. 2, of 2000. In other words, the Ist appellant being a statutory authority had no power to either employ, promote, discipline or remove any of the respondents outside the requirement of the Law, which is the statutory authority empowering him to do so. The powers exercised by the appellants are derived from states and they cannot exercise any powers except in accordance with and for the purpose they are granted such powers. If he did so outside the requirements of the statute empowering him to do so, his action would be ultra vires his powers, and therefore null and void. The Ist appellant also had no power to import anything into the statute giving him powers to appoint or remove the respondents, which has the tendency to give him powers not granted him by Law. (Pp. 419-420, paras. F-F)

On Procedure for appointment and termination of employment of public officer.

Whether the issue involved is that of employment, promotion, discipline or removal of a public employee, no public office, organ or body or person exercises his personal powers. It therefore means that in the exercise of such power of employment, promotion, discipline or removal, no public officer has the power to exercise any personal right nor does he have the power to exercise such power at his own whims or caprices. This is because each exercises his power that is devolved to him by statute, and so the power must be exercised in the manner the enabling Law or statute directs that it should be exercised. (P.419, para. (-E)

On what employment can be said to be with statutory flavor.

An employment will be held to be tangled with statutory flavor if the employment or contract of service is one in which the terms or tenure of the employee is protected by either statute or regulation. (C.O.E., Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191) 423 referred to.) P.413, paras. C-E).

On when employment can be said to be with statutory flavor.

When an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulation made thereafter, any person holding that office or in such employment enjoys a special status over and above the ordinary master and servant relationship. (Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 referred to.) P.413, paras. E-G)

On duty to strictly comply with procedure laid down by statute for commencement of action and effect of failure to comply.

Where a statute or constitution prescribes a procedure for seeking a remedy or the doing of anything or act and the language used is clear and unambiguous, that is the only procedure open to the parties concerned and departure therefrom will be an exercise in futility. (S.A.P. (Nig.) Ltd. V. C.B.N. (2004) 15 NWLR (Pt. 897) 665 referred to). P.413. paras. G-H)

On Duty on Court to enforce mandatory provision of a statute

The court are bound to enforce the mandatory provisions of a substantive law. It is the duty of all courts to give effect to legislation. Parties cannot by consent or acquiescence or constitution. In other words, it is the duty of a court to enforce mandatory provision of an enactment. (Adedeji v. N.B.N. Ltd. (1989) NWLR (Pt. 96) 212 referred to.) Pp.413-414, paras. H-B).

On whether person appointed for fixed term can be removed before expiration and exception thereto-

A person appointed to a post for a fixed term by statute has a right to serve out the statutory term of his appointment. He cannot be removed from the office by any person during the period of the term except for misconduct. In the instant case the respondents could only be removed from office if the provision of section 4 (1) of the Ekiti State Local Government Service Commission No. 2 of 2000 was complied with (Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401 referred to). P. 414, paras. E-G)

On whether person appointed for fixed term can be removed before expiration

By virtue of section 3(1) of the Ekiti State Local Government Service Commission Law, a member of the Commission shall, unless he resigns his appointment or is removed, hold office for a period of three (3) years from the date of his appointment and may be re-appointed only once. (P.414, paras. B-C)