Whether Governor Is A Public Officer Under The Laws Of Bendel State

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 8th day of April, 2022

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Amina Adamu Augie

Abdu Aboki

Ibrahim Mohammed Musa Saulawa

Justices, Supreme Court

SC.131/2009

Between

MR PHILIP IKHANOBA AROYAME APPELLANT

And

1. THE GOVERNOR OF EDO STATE
2. ATTORNEY-GENERAL OF EDO STATE RESPONDENTS

(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

The Appellant was employed as an Executive Officer in the Public Service Commission in the defunct Bendel State, on 1st November 1971. He rose to the position of Auditor General (Local Government), Edo State with effect from 25th May, 1998. By a letter dated 28th September, 2000 and signed by the Secretary to the State Government, conveyed to the Appellant, the 1st Respondent pursuant to the powers vested in him under Section 208 of the 1999 Constitution, removed the Appellant from office as Auditor-General with effect from 1st October, 2000. By a subsequent letter dated 29th September, 2000, the Appellant was retired from the Civil Service with effect from 30th September, 2000. As at the said date, the Appellant was 53 years old.

Aggrieved, the Appellant filed an Originating Summons at the High Court of Edo State on 3rd April, 2001, six months after the letters were issued, seeking inter alia a declaration that he is entitled to continue in service until he attains the age of 60, and that the unilateral act of the 1st Respondent abridging the Appellant’s service years is a violation of Section 4(1) of the Pensions Act, and therefore, ultra vires, unconstitutional, null and void. He also sought an order setting aside his disengagement and reinstating him as the Auditor-General, Local Government, Edo State until he attains the compulsory retirement age of 60 years. In response, the Respondents filed a Counter-affidavit in opposition to the Originating Summons.

The Respondents raised a point of law that the suit was statute barred, having been filed outside the three months from the date the cause of action accrued, as prescribed by the Public Officers Protection Law, Laws of Bendel State, 1976 applicable in Edo State. The point of law was argued together with the substantive summons. In its judgement, the trial court held that the suit was indeed statute-barred, and same was struck out. Dissatisfied, the Appellant appealed to the Court of Appeal, which court affirmed the decision of the trial court. Still dissatisfied, the Appellant filed a further appeal to the Supreme Court.

Issue for Determination

The following issue as formulated by the Respondents, was adopted by the Supreme Court in its determination of the appeal –

Whether the 1st Respondent is a Public Officer within the contemplation of the Public Officers Protection Law, Cap 137, Laws of Bendel State, now applicable to Edo State, and whether the Appellant’s cause of action is statute barred by its provisions. 

Arguments

In his submission before the court, counsel for the Appellant conceded that the suit was instituted on 3rd April, 2001, a period of about six months from the date the cause of action arose. However, counsel argued that the 1st Respondent who removed the Appellant from office and on whose instruction the Appellant was prematurely retired is neither an employee of the Public Service of the Federation nor that of Edo State, and cannot be described as a Public Officer in any form whatsoever. He argued that the 1st Respondent, therefore, cannot seek protection under the Public Officers Protection Law for the dismissal of the Appellant from service. In support of this contention, he referred to the definition of “Public Officer” in Section 18(1) of the Interpretation Act. He argued further that the appointment and removal of the Appellant, falls within the powers of the Edo State Civil Service Commission and not the 1st Respondent.

Responding to the submission above, counsel for the Respondents argued that the Public Officers Protection Law under consideration is a State law, and therefore, the relevant interpretation law is the Interpretation Law of Bendel State, applicable to Edo State. He submitted that by the definition of a Public Officer in Section 3 of the Interpretation Law, Cap 16, Vol. III, Laws of Bendel State 1976 applicable to Edo State, the Respondents are Public Officers within the meaning of the Public Officers Protection Law. He argued that 1st Respondent’s removal of the Appellant falls within his powers, and that the alleged injury complained of by the Appellant was done by the 1st Respondent in the execution of his public duty as the Chief Executive of Edo State. He contended that in the absence of any malice or bad faith, the 1st Respondent, acting in performance of his public duty as in the instant case, is entitled to the protection provided under the Public Officers Protection Law. He submitted that the suit having been filed by the Appellant six months after the cause of action accrued, same was therefore caught by Section 2 of the Public Officers Protection Law. He referred to IBRAHIM v JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 64 LRCN 1.

Responding to the submissions of the Appellant’s counsel as regards the State Civil Service Commission, counsel for the Respondents posited that the powers of the Commission to appoint, dismiss and exercise disciplinary control over public servants as set out in Part II of the Third Schedule to the Constitution, is without prejudice to the powers vested in the Executive Governor. He submitted that by virtue of Section 208(2) of the Constitution, the Governor has the power to appoint and remove, amongst others, the Permanent Secretary or other Chief Executive in any Ministry or Department of the State Government, howsoever designated. He argued that the Auditor-General, Local Government which was the position held by the Appellant before his retirement, is the Chief Executive in the Department of Audit, Local Government in the State, and that by virtue of Section 208(5), he holds such office at the pleasure of the Governor.

Court’s Judgement and Rationale

In its determination of the issue, the Apex Court referred to Paragraph 19 of Part 1 of the Fifth Schedule to the 1999 Constitution, which defines a Public Officer to mean a person holding any of the offices specified in Part II of the Schedule. The court then referred to Paragraphs 4 and 6 of Part II of the Schedule, which listed the Governors as Public Officers. By the provisions referenced, the Supreme Court held that the Constitution of the Federal Republic of Nigeria, which is the grundnorm and the fountain for which every law derives its legitimacy, has clearly and unambiguously defined the Governor of a State and the Attorney-General of a State as Public Officers.

The court held further that the Interpretation Act which the Appellant relied on, being an Act for the interpretation of Acts of the National Assembly, cannot be used to interpret the Public Officers Protection Law which is a Law made by the Bendel State (now Edo State) House of Assembly. Further to this, the court made reference to the Interpretation Law, Cap 16, Vol. III, Laws of Bendel State 1976 applicable to Edo State which defines a Public Officer as “every officer invested with or performing duties of a public nature, whether under the immediate control of the Governor of a State or not”. Guided by the foregoing, the Apex Court held that the 1st Respondent is no doubt a public officer and the 1st Respondent, through the Secretary to the State Government, was performing a public duty when he dismissed the Appellant from the civil service of Edo State.

Furthermore, by Section 208(1) (2) and (5) of the 1999 Constitution (as amended) the Governor of a State is vested with the power to appoint and remove the Secretary to the Government of the State; the Head of Civil Service, the Permanent Secretary or other Chief Executives in any Ministry or Department of the Government. It is also provided by virtue of the said section that, any such appointment into the office of the Secretary to the Government of the State or the Permanent Secretary or other Chief Executives in any Ministry or Department of the Government shall be at the pleasure of the Governor. The court held that by these provisions, the Auditor-General is the Chief Executive in the Department of Audit, Local Government in the State. As the Appellant in the instant case and the holder of that office, he holds it at the pleasure of the Governor who has the power to appoint into the office and remove from the office.

Their Lordships held further that it is evident the letters disengaging the Appellant from service were issued by the 1st Respondent in the performance of his public duty, and since the Appellant has neither alleged nor shown that the 1st Respondent acted in bad faith or in abuse of his office, or outside the scope of his authority, the 1st Respondent is entitled to the protection offered by the Public Officers Protection Law. The court relied on SANI v THE PRESIDENT FRN & ANOR. (2020) LPELR – 50990 (SC) at 6-7 F-A and 8-9 A-A, in support of its position. The letters disengaging the Appellant from service were issued on 28th and 29th September, 2000 respectively, and the suit was filed by the Appellant on 3rd April, 2001, almost six months thereafter. It therefore goes without saying that, the Appellant’s action was statute barred having been brought outside the three months next after the cause of action accrued, as provided under Section 2(a) of the Public Officers Protection Law of Bendel State, applicable to Edo State.

Appeal Dismissed.

Representation

K.O. Obamogie Esq. with Solomon Ienlaye Esq. for the Appellant.

Prof F.O. Osadolor, (Solicitor General and Permanent Secretary, Edo State) with F.O. Usiobaifo Esq., (Senior State Counsel, Edo State) for the Respondents.