VICTOR UKUT, in this discourse, examines the constitutional and legal provisions for the removal of a public officer

RECENTLY,  Governor Godswill Akpabio of Akwa Ibom State removed Mr. Umana Okon Umana, former secretary to the state government, from office. While tongues were wagging on the reasons or motives for the sack, the state’s Commissioner for Information, Mr. Aniekan Umana, in a paid advertorial stated that the former SSG was sacked because he refused to resign even while nursing a political ambition or campaigning to contest the Governorship election of Akwa Ibom State in 2015.

On page 62 of The Nation newspaper, paragraph 7 of the said advertorial, the commissioner states thus: “Following the declaration of Mr. Umana’s gubernatorial ambition for 2015 election and commencement of campaigns as widely reported in the media on July 25, 2013 and his non-refuttal of same, Governor Akpabio sought advice from relevant electoral and constitutional experts.

Akpabio

He was advised that he was duty bound by his Oath of Office to defend the Constitution (which includes the provisions of the Electoral Act which forbid public officers from declaring for electoral office while still in office). He, consequently requested for Mr. Umana’s resignation to enable him (Umana) [to] pursue his stated interest in the 2015 Governorship Election.”

In far away United States of America, Governor Akpabio, while addressing a town hall meeting of Akwa Ibom indigenes in Washington DC as part of Akwa Ibom Day Celebrations, used the occasion to inform the Akwa Ibom in Diaspora that he sacked Mr. Umana Okon Umana in order to protect the Constitution of the Federal Republic of Nigeria 1999 (as Amended).

According to the governor, the 1999 Constitution prohibits public servants/officers like the former SSG from campaigning for elective office while in office without resigning prior to such campaigns. According to Governor Akpabio, he swore to defend the Constitution when he took the oath of office and oath of allegiance.

As clearly gleaned from the direct statement of the governor, his defence of the sack was his own need to defend the Constitution. According to Governor Akpabio, since the former SSG had violated the Constitution as a public officer/servant he had to ease him out of office.

Although the governor has the right to hire and to fire, the question for our discourse in this treatise is whether the former SSG was a public officer/servant within the context of the 1999 Constitution as amended or whether the former SSG was mandated under any law or the 1999 Constitution as amended to resign from office before he could indicate a political interest into the office of the Governor of Akwa Ibom State in the 2015 Elections.

For the purpose of this treatise, Section 182(1) (g) and Section 318(1) of the 1999 Constitution shall be relevant for determining whether the former SSG was a public servant/officer who needed to resign his appointment before he could declare his interest in, campaign or contest in an election to the office of the Governor of Akwa Ibom State.

The Court of Appeal in the case of Orji v. Ugochukwu (2009) 14 NWLR Pt. 1161 pg. 207 @293 answered these posers. In that case, the Abia State Government election took place on April 14, 2007 and in the results that were declared, the Independent National Electoral Commission announced the 1st and 2nd appellants as winners of the said election as governor and deputy governor of Abia State respectively.

The 1st respondent, the Peoples Democratic Party and her governorship candidate and running mate at the election were dissatisfied with the election results and they filed separate election petitions against the results.

The petitions were identified as ABS/GOV/EPT/4/2007 for the candidates and ABS/GOV/EPT/9/2007 for the 1st respondent. The two petitions were consolidated upon the order of the election tribunal. One of the grounds upon which the petitions were premised was that the appellants were not qualified to contest the questioned election because of their non-resignation from public service of Abia State, one month before contesting the election.

It should be noted that as at the time of the election, the 1st and 2nd appellants were the Chief of Staff to the Governor of Abia State and a Commissioner in Abia State respectively.

The election tribunal, in its judgment, allowed the 1st respondent’s petition and nullified the return of the 1st and 2nd appellants. It further proceeded and returned the candidates of 1st respondent (petitioners in Petition No. EPT/4/2007) as governor and deputy governor, respectively of Abia State. Aggrieved by the decision, the appellants appealed to the Court of Appeal.

The golden rule of interpretation is that words of a statute must prima facie be given their ordinary meaning.

The Court of Appeal allowed the appeal of Chief Theordore Orji (the incumbent Governor of Abia State) and Chris Akomas (the former deputy governor). At pages 289 – 293 the Court of Appeal held as follows:

“The next issue is whether or not the 1st & 2nd Appellants were employees in the public service of Abia State at the time of the election to warrant their resigning at least 30 days to the date of the election. In order to satisfactorily deal with this issue, it is apt to consider Ss. 182(g) and 318(l) of the 1999 Constitution. The two sections read: “182(1) No person shall be qualified for election to the office of Governor of a State if…(g) being a person employed in the public service of the federation or of any state, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or…”

Section 318 of the 1999 Constitution which is on interpretation states: “Public service of a State means the service of the State in any capacity in respect of the government of the State and includes service as: (a)Clerk or other staff of the House of Assembly; (b)Member of Staff of the High Court, the Sharia Court, the Court of Appeal, the Customary Court of Appeal or other Courts established for a State by this Constitution by a law of a House of Assembly;

(c)Member or staff of any Commission or authority established for the State by this Constitution or by a law of a House of Assembly;

(d)Staff of any Local Government Council; (e) Staff of any Statutory corporation established by a law of a House of Assembly; (f) Staff of any educational institution established or financed principally by a government of a State; and (g) Staff of any company or enterprise in which the government of a state or its agency holds controlling shares or interest.”

This Court is replete with authorities on the interpretation of the provisions of S.182 (g) already reproduced (above) on who a person employed in the public service of a State is. It is, however, vital that whoever is alleging that a person is in the service of a particular state as in the instant case must establish by proven evidence of employment of the persons who S.182 (g) above forbids from contesting or mandates to give a notice of resignation of 30 days before the election that took place on April 14, 2007. The learned senior counsel for the 1st and 2nd appellants went on to say that the persons contemplated are set out in paragraph (g) of S.182 of the 1999 Constitution.

Successful challenge

I entirely agree with him on that score as well as his further submission that it is only when the person is successfully challenged as an employee in the public service of a State or service of the Federation that he is expected to give notice of his resignation from that office within 30 days before election.

The 1999 Constitution has apparently gone a further step by making itself explicit in the interpretation or explanation of what it meant by public service of the federation or a state in S.318(1), in its categorization of the term under sub paragraphs (a), (b), (c), (d), (e) and (f) already reproduced above and that under none of these categorization does a chief of staff to a governor or commissioner for a State fall.

As far as S. 318(1) is concerned, the 1999 Constitution has specifically set out the categories of staff within its contemplation. The law is settled that in the interpretation of the Constitution or a statute, specific mention of names or items means the exclusion of others not mentioned and/or that the several item will not include the specific items. This principle of interpretation is encapsulated in the Latin maxim of “generalia specialibus non derogant.”

Equally relevant is the Latin maxim of “expression unius est exclusion alterious,” “inclusion unius est exclusion alterius” and “enumeration unius est exclusion alterius” meaning in essence, the express inclusion of one thing is the exclusion of another.

JUDGES are not called upon to apply their opinions of sound policy so as to modify the plain meaning of constitutional provisions or statutory words. See Nwangwu vs. Nzekwu (supra) at page 36, Lion Insurance vs. Tucker (supra), Aqua Ltd. vs. Ondo State Sports Council (supra) at page 622; Notes vs. Donaster Almagamated Collieries Lts. (1940) A.C. 1014 at 1022.

In effect, the 1st and 2nd appellants are not in duty bound to give 30 days notice or one month’s notice as wrongly averred by the petitioners in paragraphs 6(p) of the petition or any notice at all. Equally relevant to fortify my view that the 1st and 2nd appellants are not public officers as defined by S. 318(1) of the 1999 Constitution are Sections 192(1), 193(1) and 208(1), 2(a)(b)(c)(d) and (5) of the same Constitution. They read in that order as follows:

Business of government

“192(1) There shall be such offices of Commissioners of the government of a state as may be established by the Governor of the State.”

“193 The Governor of a State may, in his discretion, assign to the Deputy Governor or any Commissioner of the government of the state responsibility for any business of the government of that State, including the administration of any department of government.”

“208(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from such office shall vest in the Governor of the State.

(2) The offices to which this section applies are, namely: a. Secretary to the Government of the State b.Head of the Civil Service of the State c. Permanent Secretary or other Chief Executives in any Ministry or Department of the Government of the State howsoever designated; and d. Any office on the personal staff of the Governor.

(5) Any appointment made pursuant to paragraphs (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the governor ceases to hold office. Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.

It is apparent from the wording of the forgoing provisions that the offices of the Chief of Staff being the head of the personal staff of the governor and the commissioner of the state being offices respectively held in the erstwhile government of Abia State by 1st and 2nd appellants are political office holders whose appointees among others, serve at the pleasure of the Governor of Abia State and accordingly not person in the public service of Abia State.

A judicial pronouncement was succinctly made in the case of Dada v. Adeyeye (2005) 6 NWLR (Pt. 920) 1 at 19-20; while considering the provisions of Section 182(1) (g) read together with S. 318(1) of the 1999 Constitution that the Governor of a State, his Deputy, the Speaker and all other political office holders are not in the public service of the State.

This Court expatiated that from the above definition, it is clear that the governor of a state is not in the public service of the State within the meaning of S. 318(1)(Supra).

See also the case of Asogwa v. Chukwu (2003) 4 NWLR (Pt. 811) 540 at 546 where it was held, inter-alia, that the interpretations in the two sections above are saying the same  thing, that is to say, that the term public officer should only relate to the holder of the offices as reflected in S. 318, Supra, being employees whose appointments enjoy statutory flavour because it is only those set of people who have conditions of service and/or letters of appointment stipulating how many years they are to spend in service, at what age they should retire, the number of months to be given a notice either by the employer to mention a few conditions of service.

See also Governor, Ebonyi State v. Isuama (2004) 6 NWLR (Pt. 870) 511 at 528; Ojukwu v. Yar’dua (2008) 4 NWLR (Pt. 1078) 435 where this court held that Governors and Commissioners appointed by them (the Governor) are not public officers who should resign their positions before contesting in an election.

It follows from the foregoing analysis by the Court that Umana O. Umana was not obliged to tender a resignation before embarking on his political intention or campaign (if any) for the Office of the Akwa Ibom State Governor in the 2015 elections.

Assuming without conceding that Umana O. Umana was a public servant, he was only obliged to tender a resignation 30 days before the date fixed by INEC for the election into the office of the Governor of Akwa Ibom State.

As a matter of fact, since Umana O. Umana was not a public servant, he could contest the election for the office of governor while still retaining the office of the SSG without any resignation as stated by the Court of Appeal in the case of Orji vs Ugechucku (Supra)