DR. AKANBI ADEWOLE & ORS v. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE OF ONDO STATE & ORS

CORAM

PARTIES

1. DR. AKANBI ADEWOLE

2. CHIEF S. A. IDRIS

3. CAPT. VINCENT OYEPATA

4. APOSTLE OGUNDANA EMMANUEL

5. CHIEF OGUNWALE

6. MRS. AYO ELIZABETH

7. CHIEF ALABI MOSES

APPELLANTS 

1. ATTORNEY-GENERAL AND COMMISSIONER OF JUSTICE OF ONDO STATE

2. PROFESSOR A. FATUYI

3. CHIEF BISI OGUNDIPE

4. DR. A. O. OPEKE

5. HONOURABLE OLA EKE

6. MR. FEMI TOMIWA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Appellants initiated an originating summons against the Defendants/Respondents at the High Court of Ondo State seeking  a declaration that the Plaintiffs/Appellants, who were  members of the State Independent Electoral Commission Ondo State,  were entitled to continue in office for a period of 5 years from the date of appointment of each of them unless otherwise removed in accordance with the provisions of section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999 and that the  purported constitution and/or appointment of the 2nd to 6th Defendants/Respondents as members of the State Independent Electoral Commission is ultra vires the powers of the Ondo State Government and was therefore unconstitutional, null. The Plaintiffs/Appellants, inter alia, also sought a declaration that the compilation and updating of the register of voters which shall include the names of all persons entitled to vote in any Local Government Election is a condition precedent to the conduct of Local Government Election in Ondo State. Being served with the originating process, the Defendants/Respondents filed a notice of preliminary objection contending inter alia that the suit was not initiated or constituted according to the due process of Law as the material facts of the case were in dispute in addition to the fact that the said suit was statute barred having being caught up with Section 2(a) of the Public Officers Protection Law of Ondo State Cap 103, 1978.  The trial Court upheld the Defendants/Respondents’ preliminary objection and dismissed the Plaintiffs/Appellants’ suit on the ground that it was statute-barred. Dissatisfied with the decision of the trial Court, the Plaintiffs/Appellants appealed to the Court of Appeal.

HELD

Appeal Allowed

ISSUES

1. Whether the action of the Plaintiffs/Appellants was statute barred at the trial court thus stripping the said court of jurisdiction to entertain same ?

2. Whether, the action was statute barred assuming it was performed by a public officer in the execution of public duty?

RATIONES DECIDENDI

APPEAL – WHAT DOES AN APPEAL ENTAIL?

“An appeal entails the re – hearing of the entire case. This, an Appellate Court will do where the complaint is that the decision is perverse in that there was no legal basis or factual basis for the same. In some instance, the task is made easier by a disclosure of a deficiency even on the face of the record; and where it may show that Justice has not been done in a case. See Lawal v. Adekeye (1974) 6 SC 83; Balogun v. Akanji (1985) 1 FWLR (Pt. 70) 301; Nsirim v. Nsirim (2001) FWLR (Pt. 96) Pg. 433 @ 445.” PER M.A.DANJUMA, J.C.A

SPECULATION- DUTY OF COURTS NOT TO SPECULATE

“Speculation is not the function or duty of a court or Judge. Since those finding and conclusion there from are not related to any evidence not derivable there from, they must be set aside. See Ogundulu v. Chief Olabode Phillips(1973) 2 SC 71. See recently, the dictum of Ogunbiyi, JSC in Gbemisola v. Bolarinwa(2014) 9 NWLR (Pt. 1411) @ 41-43 A-B.”PER M.A.DANJUMA, J.C.A

REMOVAL OF PUBLIC OFFICER – A CONSTITUTIONAL RIGHT, WHICH HAS THE NATURE OF PUBLIC RIGHT, CANNOT BE WAIVED OR CONDONED

“I am strongly inclined to think that the Constitutional provisions for the mode of removal of the Appellants from their protected tenure of 5 years demanded that even the alleged act of the Attorney-General or participation cannot validate it ipso facto. There must be shown proof of the compliance with the Constitution, as it is akin to a Constitutional provision for a “trial” though in a civil proceedings wherein a decision involving Constitutional rights and civil obligations and duty exist. The law is that such a right cannot be waived or acquiesced therein. It is a constitutional right which is similar or in the nature of a public right wherein public duty is imposed by law in the interest of society and the polity. It cannot be held to have been waived, or condoned. It is not a right for the benefit of the Appellants. Perse. See R. Aniori& Ors v. Muraino B. D. Elemo & Ors (1983) 1 SC 13 pg.19-20 (1983) 1 SC NLR 1.” PER M.A. DANJUMA, J.C.A

DEPARTURE FROM A CONSTITUTIONALLY GUARANTEED RIGHT – A DEPARTURE FROM A CONSTITUTIONAL RIGHT CAN BE ALLOWED AS STIPULATED IN THE CONSTITUTION

“ A public right, more so a Constitutionally guaranteed right and its procedure of protection or departure there from under the Constitution is sacrosanct and may only be departed from as allowed or as stipulated under the Constitution, as compliance thereto is mandatory for any legal efficacy and validity. See S. 6(6) of the 1999 Constitution”. PER M.A.DANJUMA, J.C.A

EVALUATION OF EVIDENCE- THE DUTY OF THE TRIAL COURT IS TO CONSIDER ALL THE EVIDENCE PROFFERED BY ALL THE PARTIES AND ASCRIBE VALUE TO THEM SO AS TO DO JUSTICE

“To do Justice in any matter, it is the duty of the trial court to consider all the evidence proffered by all the parties, ascribe value to them, make definite findings of fact, apply relevant law and come to a conclusion. See Abubakar v. Joseph (2008) 13 NWLR(Pt. 1104) page 307 and Stanoil (Nig) Ltd (supra) @ 80 (H).”PER M.A. DANJUMA, J.C.A

STATUTE BARRED ACTION – DETERMINATION OF STATUTE BARRED ACTION

“It is the statement of claim or originating process that determines whether an action is statute barred or not. See Stanoil (Nig) Ltd v. Inducom (Nig) Ltd supra (CA).”PER M.A. DANJUMA, J.C.A

PROOF OF MALICE- MALICE MUST BE SPECIFICALLY PLEADED AND PROVED

“Malice must be pleaded and proved as Neither can the short duration, Quick or immediacy of action be proof of not acting within public duty or in execution or intended execution thereof by a New Government.”PER M.A. DANJUMA, J.C.A

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999

2. Public Officers Protection Law of Ondo State, Cap 103, 1978

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