Cause Of Action: How Determined

GOVERNOR, EKITI STATE

ATTORNEY GENERAL EKITI STATE

V

CHIEF FEMI AKINYEMI

BOSUN OSHUNTOKUN

JIDE EGUNJOBI

J.B. AMIRA

DELE AJIBOLA

BAMISAIYE DADA

OLU ALE

COURT OF APPEAL

(EKITI DIVISION)

UWANI MUSA ABBA AJI, J.C.A. (Presided and Read the Leading Judgment)

CHIDI NWAOMA UWA, J.C.A.

HARUNA M. TSAMMANI, J.C.A.

ACTION- Cause of action- Meaning of – How determined.

ACTION- Cuase of action- Whether suit discloses reasonable cause of action – Determination of – Weakness of plaintiff’s claim – Whether ground for striking out.

ACTION – Commencement of action – Procedure therefore – Where prescribed by statue or Constitution – Need to strictly comply with-Failure to so do – Effect.

APPEAL – Arguments in appeal-Need to be based on issues as opposed to grounds of appeal – Rationale-Where arguments are based on grounds of appeal –Effect.

CASE LAW-Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599-Ratio decidendi therein.

CONTRACT – Contract of employment-Contract of employment in private and public sector – Distinction between.

CONTRACT – Contract of employment – Whether and when has statutory flavour- How determined.

CONTRACT – Public officer – Appointment of – Nature of-Procedure for termination of.

COURT – Statute – Mandatory provisions of – Duty on court to enforce.

LABOUR LAW – Contract of service – Where for a fixed term – Whether persona can be removed before expiration of – Exception thereto – Sections 3(1) and 4(1) of Local Government Service Commission Law, 2000.

LABOUR LAW –  Employment with stator flavour – When employment can be said to with said to be with statutory flavour.

LOCAL GOVERNMENT – Chairman and members of a Local Government in Ekiti State –  Appointment and termination of – Procedure thereof – Local Government Service Commission Law No. 2 of 2000.

MASTER AND SERVANT – Contract of service – where for a fixed term –  Whether person can be removed before expiration of – Exception thereto-Sections 3(1) and 4(1) of Local Government Service Commission Law, 2000.

MASTER AND SERVANT – Employment with statutory flavour – When employment can be said to be with statutory flavour.

PRACTICE AND PROCEDURE – Appeal – Argument in appeal – Need to be based on issue as opposed to ground of appeal –  Rationale – Where arguments are based on grounds of appeal – Effect.

PRACTICE AND PROCEDURE – Cause of action-Meaning of – How determined.

PRACTICE AND PROCEDURE – Cause of action – Whether suit discloses reasonable cause of action – Determination of – Weakness of plaintiff’s claim – Whether ground for striking out.

STATUTE – EKITI STATE Local Government Service Commission Law No. 2 of 2000 – Appointment and removal of Chairman and members of the Local Government Commission thereunder – How done- Sections 3(1) and 4(1) of the Ekiti State Local Government Services Commission Law.

STATUTE – Mandatory provisions-Duty on court to enforce.

WORDS AND PHRASES –Cause of action – Meaning of.

WORDS AND PHRASES – Employment with Statutory flavour –  Meaning of.

Issues:

1.Whether the trial court was not wrong in holding that the respondents had a cause of action in this case.

2.         Whether the trial court was not wrong in giving judgment to the respondents in the light of the facts and circumstances of this case.

Facts :

Before the Ekiti State High Court, the respondents took out an originating summon dated 1st November 2010 against the appellants for determination of the following questions:

“1.       Whether the plaintiffs who are the Chairman and Members of the Ekiti State Local Government Service Commission constituted under the Local Government  Services Commission law can be removed or their tenure terminated and the Commission dissolved by the defendants otherwise than in accordance with the provisions of the Local Government Services Commission Law. No. 2 of 2000.

2. Whether the defendants, who are the Executive Governor of Ekiti State and the Chief Law Officer of the State, have the powers to dissolve the Ekiti State Local Government Service Commission and thereby relieve the plaintiffs of their appointments without regard to sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law, No.2 of 2000.

3. Whether the defendants are not bound by the aforesaid provisions of Ekiti State Local Government Service Commission Law No. 2 of 2000 which established the Ekiti State Local Government Service Commission in their action and decisions concerning the plaintiffs.

4.         Whether the purported dissolution of the Ekiti State Local Government Service Commission and termination of the appointment of the plaintiffs as Chairman and Members respectively by a general radio announcement was a violation of the provisions of sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law No. 2 of 2000 and is hereby ultra vires and null and void.

5.         Whether the Radio announcement by the defendants on the 22nd  day of October 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 plaintiffs.

The respondents claimed the following reliefs against the appellants.

1.         A declaration that the purported dissolution of the Ekiti State Local Government Service Commission and termination of the plaintiffs appointment as Chairman and Members of the  Commission by the appellants alongside all other Commissions, Boards and Parastatals vide a radio announcement on the 22/10/2010 is unlawful, wrongful, illegal, 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 Ekiti State Local Government Service Commission.

3. An order of injunction restraining the defendants from treating and/or regarding the appointment of the plaintiffs as chairman and members respectively or Ekiti State Local Government Service Commission as having come to an end, and/or appointing other persons to replace them before the end of their 3 year tenure as guaranteed by sections 3(1) and 4(1) of the Ekiti State Local Government Service  Commissions Law No. 2 of 2000.

4.         An order re-instating the plaintiffs as chairman and members of the Ekiti State Local Government Service Commission forthwith and restoring to them all other rights, perquisites and  entitlements of their offices. Or in the alternative.

5.         An order of payment of the plaintiffs the total of all remunerations due to them up till and including 11th day of February, 2011.

The respondents also filed a motion for an order of interlocutory injunction restraining the appellants from constituting any Local Government Service Commission or appointing anybody as chairman and members of the Local Government Commission pending the determination of the substantive suit.

The case of the respondents was that they were appointed in accordance with sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law No. 2 of 2000. Thus the removal must be in accordance with the same Law. They only heard about their removal on the radio/television. The appellants however, contended that they were graciously appointed at the pleasure of the 1st appellant.

On the 18th November 2010, the appellants filed a notice of preliminary objection that the trial court lacked jurisdiction and that the matter be struck out.

The grounds of the objection were that:

(a)        The respondents had no cause of action.

(b)        The action was incompetent before the court.

(c)        The action was frivolous, vexatious, and therefore incurably incompetent and defective.

Parties were heard on their submissions in respect of the preliminary objection and the originating summons. The trial court on 17th January 2011 dismissed the preliminary objection and found in favour of the respondents, granted all the reliefs sought, except positions in the local government  service commission of Ekiti State but instead granted the alternative relief which sought for full payment of their entitlement.

Dissatisfied with the judgment of the trial court, the appellants appealed to the Court of Appeal.

In determining the appeal the Court of Appeal considered the provisions of sections 3(1) and 4(1) of the Ekiti State Local Government Service Commission Law No. 2 of 2000 which provide:

“3(1)    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 reappointed only once.”

“4(1)    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.”