3PLR – ABBA ASHEIK V. GOVERNOR OF BORNU STATE AND OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ABBA ASHEIK
V.
GOVERNOR OF BORNU STATE AND OTHERS
COURT OF APPEAL (JOS DIVISION)
CA/J/165/92
WEDNESDAY 12TH JANUARY 1994
3PLR/1994/1 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
DAHIRU MUSDAPHER
RABIU DANLAMI MUHAMMAD
ADRIAN CHUKWUEMEKA ORAH.
BETWEEN
ABBA ASHEIK
AND
GOVERNOR OF BORNU STATE;
- MOHAMMED ABBA AJI (DIRECTOR-GENERAL DEPUTY GOVERNOR’S OFFICE);
ATTORNEY-GENERAL BORNO STATE.
REPRESENTATION
- A. BELLO – for Appellant
- DAUDA PRIN. State counsel, Min. of Justice, Borno – for Respondents
MAIN ISSUES
GOVERNMENT AND ADMINISTRATIVE LAW:- Local government Area – In whom resides control of staff of in terms of recruitment, transfer, promotion etc
GOVERNMENT AND ADMINSTRATIVE LAW:- Budget speck – Whether possesses force of law
CONSTITUTIONAL LAW:- Right of party whose interest is threatened or injured to seek redress
PRACTICE AND PROCEDURE – ACTION – LOCUS STANDI:- Existence of Locus Standi – How determined
MAIN JUDGEMENT
RABIU DANLAMI MUHAMMAD [Delivering the Lead Judgement
The appellant, Alhaji Abba Asheik, was the Director of personnel acting on grade level 15 with Magumeri Local Government of Borno State. He has all along been subject to the general control, in respect of promotion, transfer and discipline of the Borno State Local Service Commission until it was abolished by the president in his budget speech in January 1992. On 12th March, 1992 the appellant received a letter from the Director-General in the office of the Deputy Governor in which the appellant was transfer from magumeri to Maute Local Government. The following day i.e. 13th March, 1992, he received another letter from the said Director-General in which the earlier letter was withdrawn and the appellant was instead asked to report to the Director-General for another posting. The appellant was eventually transferred to the Borno State Environment Sanitation Board as an Assistant Director on Grade Level 14. The appellant was aggrieved by this transfer. He therefore sought and was granted leave to apply for judicial review of the actions of the respondent. In the substantive application, the appellant asked for the following reliefs: –
“(a) A declaration that the 1st, 2nd and 3rd respondents have no right to exercise the functions of the defunct Borno State Local Government Service Commission.
(b) A declaration that the applicant is still a staff and the Director of personnel of the Magumeri Local Government in acting Grade Level 15, and subject to the discipline, promotion and transfer of the Local Government.
(c) An injunction restraining the respondents from acting or performing the functions of the defunct Borno State Local Government Commission until there is a directive to that effect from the Federal Government.
(d) A declaration that the purported directive that the appellant should report to the 2nd respondent for further posting is ultra vires, null and void and of no effect.
(e) An order of injunction restraining the respondents their agents or privies from transferring the applicant from the Local Government to the other or to any other place for that matter at all.
(f) The cost of this suit”.
After considering the affidavit evidence adduced by both parties, the learned trial Judge, Adefila J. held:-
“In my view from those laws quoted, the Executive has the right to exercise powers over Local Government and their staff. Particularly in this case where the Local Governments Services Commission has been abolished, I think the respondents have the right to exercise the power of transfer and change of cadre of the applicant. I don’t think it is ultra vires to do what they have done by transferring the applicant from one Local Government and making his grade from acting grade 15 to grade level 14. I think it would be frustrating the function of the Governor and the Local Government to say they can’t do what they have done. We would all be standing still. I will reject the application. The prayers are all refused. The injunction granted when leave was granted is hereby rescinded”.
The appellant is not satisfied with this decision. He has therefore appealed to this court. To that end he filed four grounds of appeal against the decision. Based on the grounds of appeal, the appellant formulated three issues for determination in his brief of argument. Two issues were formulated by the respondents in their brief and pursuant to order 3 Rule 14(2) of the Court of Appeal Rules, 1991, they filed a respondent’s notice that the judgment should be affirmed on grounds other than those relied on by the court below. The appellant also filed a reply brief. The issues formulated by the appellants are:-
“(1) Whether having vested the powers of recruitment, promotion and discipline of its staff on the local government, it is competent for the respondents to arrogate these functions to themselves when their powers are only limited to the provisions of guide-lines to local government or does the power to provide the guide-lines necessarily include the power to exercise those functions?
(2) Whether the provisions of section 83 of the Borno State Local Government Edict of 1977, and section 13(4) of Executive Powers (Constitutional Adaptation) Decree No. 28 of 1990 are capable of vesting on the respondents the right to exercise the powers of appointing, promoting and disciplining Local Government Staff in the State after the abolition of the Local Government Service Commission.
(3) Whether if the respondents can not exercise the powers of the Defunct Local Government Commission, they could lawfully discipline and or attempt to post the appellant outside the Magumeri Local Government.
Issue 1 relates to ground 2; issue 2 relates to grounds 1 and 4. While issue 3 relates 3 to ground 3″.
The grounds upon which the respondents intend to rely that the decision of the lower court should be affirmed on grounds other than those relied on by the court below are:
(1) The appellant has not shown his locus standi.
(2) The respondents have power to deal with the staff of the defunct Local Government Services Commission under s.48(1) of Decree No. 50 of 1992.
(3) Under the doctrine of separation of powers, the High Court has no power of judicial review of the acts of the Executive which does not infringe the Constitution.
I will first deal with the respondents notice. The first issue raised is that of locus standi. A person is said to have locus standi if he has shown sufficient interest in the action and that his interest has been adversely affected by the act of the defendant. In the Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112 it was held that:
“To entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action and that he has sustained or is in immediate danger of sustaining an injury to himself”.
In our present case, the appellant has shown that his salary has been reduced. This has not been denied by the respondents. Indeed the respondents confirmed that the appellant has been demoted to grade 14. In my view this alone has shown that the appellant has sufficient interest in the matter which he has been adversely affected. The fact that the appellant was not the only person affected by the respondent’s action, does not mean he cannot bring the action alone. He is not at all obliged to bring the action in a representative capacity. The fact that it was a general injury against many people and the other people do not complain does not make the appellants complaint unjustifiable. He is entitled to protect his own right alone. I therefore hold the appellant has locus standi to bring this action.
The second ground raises the issue of jurisdiction, in my view a respondent’s notice is not the proper procedure for raising issue of jurisdiction in an appeal. In considering order 7 Rule 13(1) of the Supreme Court Rules which is in pari materia with our order 3 Rule 14(2) 1 it was held in Williams v. Daily Times (1991) 1 NWLR (pt.124) at page 20 that:
“Another characteristic of order 7 Rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental pre-requisites, it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal”.
With respect, I subscribe to the above quoted view. The respondents should have cross-appealed.
The third ground also is untenable. The appellant is complaining that his interest has been adversely affected, he has the constitutional right to come to court for redress. The respondent’s notice is misconceived.
At the hearing of the appeal both counsel adopted their respective briefs and proffered oral arguments to elucidate certain points. Even though the appellant formulated three issues for determination, I intend to consider the issue together because they are interlinked.
In his budget address to the nation on 1 January 1992, the then president abolished the Local Government Service Commission. This is what he said:-
“In the context of Federal autonomy and democratic provisions of our constitution the existence of Local Government Service Commission at the State level as I had said before, has now become untenable. They are therefore hereby abolished. Local Government will henceforth recruit, promote and discipline their staff. It is of course expected that the State Governments will provide useful guide-lines for the local government officials. This is an additional challenge which they cannot afford to abuse”.
The appellant relied heavily on this speech. His contention is that since the local government service commission have been abolished and that he is not a civil servant, the respondents can neither transfer nor discipline him.
At the time the appellant instituted this action up to the time the trial Judge delivered his Ruling, the federal government did not issue any instruction or guide-lines with regards to the staff of the local governments. A vacuum was therefore created by the budget speech. The Local Government Service Commission have been abolished. There was nothing put in place or directive as to the fate of the local government staff who have been posted to them by the Local Government Service Commission. The budget speech was silent as to the fate of the Staff serving the local governments. It was never announced that they were deemed to have been recruited by the local governments themselves.
Let me deal with what I believe is a misconception by the appellant’s counsel. He argued forcefully that the budget speech has a force of law. In my opinion this is wrong. At best the budget speech is a policy statement of the government. Unless it is promulgated into law, it remains a policy statement only. It is therefore wrong to say that the budget speech has repealed certain existing laws. It is wrong because the president did not say any law was repealed but more importantly no person can repeal any law by word of mouth. I therefore hold that the Borno State Local Government Edict, 1977 and Executive Powers (Constitutional Adaptation, etc) Decree No.28 of 1990 have not been repealed and are applicable to the present case.
Decree No.28 of 1990 provides that:-
“S.13(4) subject to the approval and directives of the Governor, the Deputy Governor of each State shall supervise the activities and affairs of –
(a) The Local Government Service Commission of states”.
It can be seen that the Deputy Governor is empowered to supervise the affairs and activities of the Local Government Service Commission. Even though it is alleged that the Local Government Service Commission have been abolished, I think it is appropriate for the Deputy Governor to supervise the affairs of the defunct Commissions until something else is put in place. I am strengthened in my view by the provisions of the Borno State Local Government Edict 1977. In the absence of the commissioned and any law regulating same, we must resort to the Edict which is an existing law. Section 83 of the Edict provides:-
“83. The Military Governor may make regulations not inconsistent with the provisions of this Edict with respect to the officers and staff of local government and in particular and without prejudice to the generality of the foregoing, may by such regulation provide for:-
(g) The maintenance of discipline (including dismissal and termination) and the procedure to be followed in disciplinary matters.
(h) The transfer of employees between local governments in the state”.
In my opinion, the combined effect of Decree No.28 of 1990 and the Local Government Edict, 1977 is to give the Governor and his Deputy Supervisory and regulatory powers over the Local Government Service Commission. Since the commissions are said to be abolished, I think the respondents have got the right to transfer or discipline staff already appointed by the defunct commission.
In the circumstance the appeal fails. It is hereby dismissed. I made no order as to costs.
Musdapher and Orah JJCA concurred.
Cases referred to in the judgment:
Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112
Williams v. Daily Times (1991) 1 NWLR (pt.124) 1
