ELDER J.O.AGHIMIEN & ORS v. THE EXECUTIVE GOVERNOR, EDO STATE & ORS

“In law, the failure of the 1st and 2nd Respondent to make any counter submissions on issue five would simply amount to a concession by them that indeed when the Court below proceeded to deliver its judgment dismissing the Appellants’ Suit for being statute barred by virtue of Section 2(a) of the Public Officers Protection Law it was really on a voyage of discovery of its own and thereby did so without jurisdiction when it arrived at its decision dismissing the Appellants’ Suit. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC.,(as he then was now CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party” See also See Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA; Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111”. –

“Be that as it may, in law failure by one party to counter argument of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012)17 NWLR (Pt. 1306) 450; Elelu-Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V, Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. –

“Happily, in law a decision of a Court reached on a non – existence application is one reached in absence of jurisdiction and therefore, a nullity and thus, liable to be set aside. –

“However, in law, a Respondent who intends in an appeal to raise and or canvass issues outside the purview of the grounds of appeal filed by an Appellant has open to him one of two options, namely; to Cross appeal or to file a Respondent’s Notice. Thus, in the absence of either a Cross Appeal and or a Respondent’s Notice, a Respondent is not at liberty to either formulate and or canvass issues outside the purview of and thus not arising from any of the valid grounds of appeal filed by an Appellant. I therefore, consider all the submissions of learned counsel for the 3rd Respondents on the exclusive jurisdiction of the National Industrial Court over the claims of the Appellants, and not arising from any of the five grounds of appeal in the Appellants’ Amended Notice of Appeal, as going to no issue in this appeal and thus hereby discountenanced. See Association of Senior Civil Servants of Nigeria V. JUSUN (2014) LPELR – 24185 (CA) per Georgewill JCA. See also IGP V. Ikpila (2015) LPELR – 40630 (CA) per Georgewill JCA. –

“There is no doubt that the provisions of the Public Officers Protection law is clearly intended to afford protection for Public Officers carrying out their statutory and or legal duties from being inundated with stale claims filed outside the three month limitation periods as prescribed in the said law. However, to take benefit of these provisions and the protection afforded by it, a Public Officer must have acted legally or lawfully and in good faith and in line with the terms of his statutory and or legal duty. Thus, conversely a Public Officer who had acted in bad faith or illegally and or whose action is clothed with malice would not be afforded the protection of the provisions of Section 2 (a) of the Public Officers Protection Law. In other words, and simply put, in law the Public Officers Protection Law is meant to protect only Public Officers who acted in good faith as it is designed to protect a Public Officer whose actions are devoid of malice and bad faith and therefore, it does not and would not apply to acts done by any Public Officer in abuse of his Office with no semblance of legal justification and or where actuated by malice or bad faith. See Unilorin V. Adeniran(2007) 6 NWLR (Pt. 498) 506, where it was emphatically pronounced and held inter alia thus: “The Public Officers Protection Act is meant to protect Public Officers who acted in good faith, it is designed to protect an Officer whose actions are devoid of malice and bad faith, and does not apply to acts done in abuse of Office with no semblance of legal justification” In Offoboche V. Ogoja L.G. (2001) 36 WRN 1, the Supreme Court per Ayoola JSC, had put its imprimatur on this settled position of the law when it reiterated inter alia thus: “Before I consider the liability of the 2nd Respondent in regard to the publication made on the 20/7/1989 and dispose of the argument that since the 2nd Respondent was actuated by express malice, he was not entitled to the protection of the Public Officers Protection Law because he would not have been acting in good faith.” See also Nwakwere V. Adewunmi (1996) 1 ANLR 129 @ pp. 133 – 134 per Brett JSC; Lagos City Council V. Ogunbiyi (1969) 1 ANLR 297 @ p. 299. –

“The term ‘any resemblance of Legal justification’, in its prima facie sense, does not mean proof of lack or presence of legal justification but rather whether with regard to the extant law the action complained of shows prima facie compliance with the requirements of the law. If it does even on a prima facie basis then of course such a ground of complaint would not stand but if does not, then a prima facie finding of its non- existence can be made in the preliminary issue of limitation of time. Now, by Section 7(1) of the Revised Edition Law of Edo State 2001, the tenure of the Appellants is fixed at five year and a further term of five years. In the judgment of the Court of Appeal delivered on 11/11/2008, which I have taken the time to read through, there is nowhere the actions and appointment made by Prof O. Osunbor as Governor of Edo State before 11/11/2008 were nullified by the Court of Appeal. In that circumstances, does the letter caused to be written to each of the Appellants by the 1st Respondent through the 2nd Respondent basing the removal of the Appellant on the ground of nullification of the Government of Prof. O. Osunbor by the Court of Appeal has any semblance of legal justification to support a plea of the Public Officers Protection Law? In other words, was the removal of the Appellants vide Exhibits B – B9, in view of the reasons proffered therein in the light of the provisions of Sections 3, 4, 5 and 7 of the Revised Edition Laws of Edo State 2001, with any semblance of legal justification? I think not! See Marwa V. Nyako (2012) 204 LRCN 1 @ p. 56, where the Supreme Court per Onnoghen JSC (as he then was but later CJN) had held inter alia thus: “The fact that there was an election in 2007 as a result of which the 1stRespondent (Governors) took their oaths of allegiance are facts which cannot be wished away just as the acts they performed while occupying the seat.” I think Exhibits B5 – B9 apart from exhibiting crass ignorance and or misconception of the purport in law of nullification of the election of a Governor earlier declared elected by INEC and sworn into Office but subsequently removed from Office by the Tribunal or Court, which nullification does not nullify his acts and appointments prior to the nullification and also more gravely the aggregating of all public officers into political appointees and the powers of the 1st Respondent to remove his political appointees at his own pleasure with or without any reason as distinct from public officers whose appointment enjoy statutory flavor and are subject to removal in line with the enabling law. The Appellants are, in my finding, not political appointees in the mold of those mentioned in Section 208(1) of the Constitution of Nigeria 1999 (as amended) as erroneously held by the Court below. They are public officers whose removal is subject to compliance with the provisions of the Revised Edition Laws of Edo State of Nigeria 2001 and this made all the difference! I find therefore, as fact that Exhibits B5 – B9, not in any semblance of compliance with Sections 5(3) 5(4) and 7(1) of the Revised Edition Law of Edo State of Nigeria 2001, has no semblance of any legal justification to avail the 1st and 2nd Respondents of the protection afforded by the Public Officers Protection Law of the Defunct Bendel State 1976 as applicable to Edo State. In other words, and for the avoidance of doubt, I hold firmly that the 1st and 2nd Respondents, on the facts placed before the Court below, as in the Record of Appeal, were not entitled to the protection afforded by the Public Officers Protection Law, which I find was inapplicable, by reason of the fact that the act of the 1st and 2nd Respondents against the Appellants vide Exhibits B5 – B9, lacks any semblance of legal justification as required of them by law for them to enjoy the protection afforded by the Public Officers Protection Law. See Section 2(a) of the Public Officers Protection Law of defunct Bendel State as applicable to Edo State. –

“My lords, in law for the Public Officers Protection law to apply the following conditions must be shown to exist, namely: it must be established that the person against whom the action is commenced is a public officer acting in the execution of public duties within the meaning of that Law; the act done by the person in respect of whom the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority. See Unilorin V. Adediran (2007) 6 NWLR (Pt. 1031) 498 @ p. 535. See also Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 @ p. 299. I dare say therefore, that the protection under Section 2(a) of the Public Protection Law is not a carte blank or a shield to be carried and used by public officers to blatantly indulge in illegalities and the perpetration of injustice whenever their supposedly official acts are challenged in Court. The protection offered is not absolute and thus there are conditions that must exist before the immunity can be enjoyed by the public officer. These conditions include that the public officer must not have acted mala-fide or in flagrant abuse of his office in the sense that the official act or conduct complained of must have semblance of legal justification or vindication. See Bala Hassan V. Babangida Aliu & Ors (2010)17 N!¥LR (Pt. 1223) 547 @ p. 589; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20. Thus, I cannot but agree completely with the apt and unassailable submission of learned counsel for the Appellants, with represents the correct and undiluted position of the law, that the Public Officers Protection Law is neither envisaged nor meant to protect any constitutional wrong of a Public Officer such as the 1stRespondent who though a public officer had in clear misconception of the judgment of the Court of Appeal delivered on 11/11/2008 removing Prof O. Osunbor from Office as Governor of Edo State and returning him as the duly elected Governor of Edo State had proceeded to annul even tenured appointments backed with statutory flavor, such as the appointment of the Appellants despite the clear position of the law that in Nigeria the actions and appointments made by a person who served as a Governor after he was declared elected by INEC and sworn into office, but who was later removed from office by the Court of Appeal, the final Court at the time of this case, are saved and thus remained valid in law. See Section 184 (a) (i) and 3(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Sections138 and 149 of the Electoral Acts 2002 and 2006. See also Rt. Hon. Michael Balonwu & Ors V. Governor Of Anambra State (2009) 177 LRCN 1 @ p. 4; Marwa & Ors V. Nyako (2012) 204 LRCN 1 @ p. 20.-

In PHCN V. Ayodele & Anor (2018) LPELR – 44537 (CA), this Court per Georgewill JCA, had on this issue of applicability or otherwise of the provisions of the Public Officers Protection Act reiterated inter alia thus: “Now, in law the protection afforded by the Public Officers (Protection) Act, is a defense available to a Public Officer who had acted in line with the duties imposed on him by law. There is no allegation of bad faith or acting outside the scope of its authority against the Appellant by the 1st Respondent, which would have taken away the protection afforded it by the Public officers Protection Act and validate the 1st Respondent’s Suit filed way outside the three months limitation period.” See also Hassan V. Akilu (2010) 17 NWLR (Pt. 1223) 547, where the Supreme Court per Adekeye JSC, had put this issue succinctly and with the finality it deserves thus: “A Public Officer can be sued outside the limitation period of three months if all time material to the commission of the all complained of, he was acting outside the color or scope of his office or outside his statutory or constitutional duty” See further Ibeto Cement Co Ltd V. AG. Federation (2008) 1 NWLR (Pt. 1069) 470 @ pp. 499 – 501; AG. Rivers State V. AG. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 @ p. 148;Egbe V. Belgore (2004) 8 NWLR (Pt. 875) 336; Sule & Ors V. Orisajimi (2019) LPELR 470 (SC). –

“In Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V. Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), this Court per Georgewill JCA, had reiterated inter alia thus: “A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.”-

“The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus: “The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief” See Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61. –

See Sections 138 and 149 of the Electoral Act 2006. See also Rt. Hon. Michael Balonwu & Ors V. Governor of Anambra State (2009)1 Vol. 177 LRCN 1 @ p. 4, where the Supreme Court had on this vexed issue pronounced with finality inter alia thus: “Thus, once the powers, the rights and the limitations under the Constitution are identified as having been created, their existence cannot be disputed in a Court of law. The fact that he had to vacate office at the end of the Court proceedings challenging his Election in accordance with the provisions of the Constitution and the Electoral Act cannot invalidate any powers or duties exercised or performed by him while in office” See further Marwa V. Nyako (2012) 204 LRCN 1 @ p. 20 where the Supreme Court had reiterated its earlier position on this now seemingly settled issue inter alia thus: “It therefore means that the consequences of the annulled election is different from a null and void proceeding or act which is usually described as being incurably bad and of no effect whatsoever…I hold the considered view that to uphold the validity of the acts of the Governors in office prior to the nullification of their election and reject the period they spent in Office during which time they performed those acts in the determination of the period of their tenure is contrary to common sense and the clear intention of the framers of the Constitution….The said Governors may not have been de – jure Governors following the nullification of their Elections; they were certainly Governors de – facto during the period they operated ostensibly in accordance with the provisions of the Constitution and Electoral Act.” –

“All persons in authority are bound by the oath of office they take to abide by the Constitution of Nigeria and the Laws of the land. Therefore, whenever, they act contrary to and in disregard of the Laws of the land, then impunity results and which if not checked by law becomes one capable of and does often lead to dictatorship, which cannot be allowed to fester at any level of governance in our democratic dispensation. In Okafor V. Lagos State Govt. & Anor (2016) LPELR-41066(CA), this Court per Georgewill JCA, had cause to pronounce inter alia thus: “In my view, this seemingly innocuous appeal by humble Citizen Faith Okafor carries with it the potential of deepening further the norms of democratic governance in Lagos State, nay Nigeria. Those who govern must do so in due compliance with the due process of law. After all, it is the same due processes of law that enable their ascendancy to their respective offices as the case may be. To observe the law of the land in breach is to do havoc to letter and spirit of the law of the land and desecrate the sanctity of the norms of democratic governance, the form of government easily accepted as the best form of governance in the world…It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead….An action which if allowed to thrive in a democracy such as ours could confer on such office holders infinite, absolute and autocratic powers contrary to the clear provisions of the Constitution of the land, to which both the leaders and the led are subject. I refuse to allow such autocratic, absolute and infinite powers to fester upon our nascent democracy…I have said it elsewhere in my contribution to a lead judgment sometimes last year in Appeal No. CA/YL/29/2015; Admiral Murtal Nyako V. Adamawa State House of Assembly, and I think it is worth reiterating here that the culture of impunity, this time as displayed by the Respondent in not only restricting the movement of the Appellant, a free Citizen of this country, on 25/5/2013 but also arresting, prosecuting, convicting and punishing her not for any breach of any offence as prescribed in any written law but purportedly for breaching the directive of the Governor of Lagos State, which like many other acts of impunity in the land have been tolerated for far too long in this country and has indeed run its full circle must be stopped now!” See also Omatseye V. FRN (2017) LPELR-42719(CA), per Georgewill JCA. My lords, thrice have I spoken and indeed I have heard that above all and when all is said and done, in every society governed by democratic norms in which the Government is of the people, by the people and for the people, every actions of Government must be taken or done within the confines, purview and ambits of the operation of the ‘Rule of Law’. The Rule of law is the condition in which all members of the society, including the rulers and the led accept the authority of the law. It finds easy expression in the term “justice”, which must not only be done at all times but must be seen as having been done. It abhors injustice to anyone. It is thus a recipe for justice for all. It propagates the notion of equality of all before the law without regards to social status, official position, education or wealth. It denotes absolute supremacy or predominance of law. Thus, observance of the laws of the land must be the guiding codes in the daily life of both the rulers and the led, so much so that none whosoever is exempted from the observance of the laws of the land. This is indeed the true essence of the ‘Rule of Law.’ See Prof A. V. Dicey: Introduction to the Study of Law of the Constitution, 10thEdition Macmillan Education Ltd, 1959 @ p. 202 . See also Garba & Ors. V. University of Maidaguri (1986) 1 NWLR (Pt.18) 550; Kalu V. The State (1987) 1 NWLR (Pt.90) 503 @ p.561.-