M.C. UWASOMBA, ESQ & 4ORS VS GOVERNOR OF IMO STATE & 3ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY 11^TH APRIL 2019

SUIT NO. NICN/OW/01/2016

BETWEEN:

M.C. UWASOMBA, ESQ
MRS M.C. ENWERENEM
MRS E.C. AGUTA
C.N. AKOWUNDU, ESQ
S.C. IHEZUE, ESQ

CLAIMANTS

AND

GOVERNOR OF IMO STATE
ATTORNEY-GENERAL OF IMO STATE
IMO STATE CIVIL SERVICE COMMISSION
IMO STATE GOVERNMEMNT

DEFENDANTS

APPEARANCES:

L.A. NJEMANZE FOR THE CLAIMANTS.
NO REPRESENTAION FOR THE DEFENDANTS.

JUDGMENT

INTRODUCTION

An Originating Summons dated and filed 8th January 2016 originally commenced this suit. By an order of this Court on 6^th October 2017, parties were ordered to file pleadings. Consequently, the Statement of Facts dated 20^th October 2017 was filed the same day along with the necessary accompanying processes and documents. The following reliefs were claimed in paragraph 20 of the said Statement of Facts:

(i) DECLARATION that the Claimants are still in the service of Imo State Government and are entitled to their salaries, emoluments, benefits and privileges.

(ii) DECLARATION that the directive or instruction from the 1^st Defendant to the 3^rd Defendant on the purported suspension of the Claimants is unconstitutional, null and void, and of no effect.

(iii) DECLARATION that the purported suspension of the Claimants from Imo State Civil Service (vide letters dated 19/11/2015 Reference Numbers CSC/P.9/S.6/IV/274, CSC/P.9/S.6/IV/278, CSC/P.9/S.6/IV/276, CSC/P.9/S.6/IV/275 and CS/P.9/S.6/IV/280) are void, and of no effect.

(iv) An Order setting aside the purported suspension of the Claimants from Imo State Civil Service.

(v) An Order restoring the Claimants’ [sic] to their positions as Directors in the Imo State Civil Service.

(vi) An Order that the Claimants be paid their salaries, emoluments and allowances from May 2015.

(vii) Ten percent (10%) interest on the judgment sum until it is finally liquidated.

(viii) Injunction restraining the Defendants, their servants and or agents from interfering, in whatsoever manner, with the Claimants’ employment in the Imo State Civil Service.

(ix) AN ORDER restraining the Defendants, their servants and or agents from taking further steps or acting in any way detrimental to the Claimants’ rights and interest.

The joint Statement of Defence dated 16^th January 2018 was filed on 7^th March 2018 against the above. The claimants reacted to the joint Statement of Defence by filing Reply to Statement of Defence dated 13^th March 2018 on 14^th March 2018. Meanwhile, my brother Hon. Justice Anuwe was formerly hearing the case. It first came up before Hon. Justice Anuwe on 7^th April 2017. On 26^th April 2017, Hon. Justice Anuwe granted an interlocutory injunction in favour of the claimants restraining the defendants from taking any further step injurious to the employment of the claimants pending the determination of the substantive suit. Subsequently, Hon. Justice Anuwe presided over the matter till 6^th October 2017. After this date, I took over from His Lordship, having been transferred to the Owerri Division, while Hon. Justice Anuwe was transferred to Abuja Division. The matter came up first before me on 17^th October 2017. It came up also on 5^th December 2017 and 11^th January 2018. On these two occasions, while the claimants and their counsel were present, the defendants and their counsel were absent. On the 11^th January 2018 when the matter came up, the learned counsel to the claimants informed the Court that the claimants had filed and served their processes on the defendants and that they have failed to react and asked for a date for hearing. The matter was therefore adjourned to 5^th February 2018 for hearing with an order that hearing notices be issued on both the learned Attorney-General of Imo State and the learned counsel to the defendants, to whom the suit was firmed.

On the 5^th February 2018 the matter came up as adjourned and the learned Attorney-General appeared in person for the defendants. The learned Attorney-General stated that the matter was actually firmed out and pleaded for adjournment to enable the matter to be settled amicably, as efforts were being made to settle the matter out of Court and that, he had intimated the learned counsel to the claimants. In reaction, the learned silk for the claimants reminded the Court that the matter was slated for hearing and that, the claimants had been suspended without salaries since November 2016 and were therefore suffering untold hardship, that he was just informed in Court of the initiation to settle out of Court. The learned silk for the claimants said he would concede to the request for adjournment because the learned Attorney-General appeared in person to make this request and promised that he would need just one month to resolve the matter. The learned silk thereafter urged the Court to adjourn the matter for report of settlement or hearing by the adjourned date in the event that settlement was not reached. The Court therefore adjourned it with the sister case to 8^th March 2018 for report of settlement/hearing.

On 8^th March 2018 the matter came up as adjourned and the learned silk to the claimants: K.C.O. NJEMANZE announced his appearance and C.O.C. EMEKA-IZIMA appeared for the defendants. The learned silk for the claimants informed the Court that no move had been made to settle the matter out of court and indicated that he was ready to commence trial in the circumstance. On the contrary, the learned counsel to the defendants said the learned Attorney-General had initiated amicable settlement while the Governor had asked for a legal opinion which the learned Attorney-General had rendered and that, the Governor was to schedule a meeting toward resolving the matter. The learned silk replied by informing the Court that just the previous day, the defendants filed their defence indicating that they were not ready for settlement and urged the Court to allow him to open the claimants’ case because, this would not stop amicable resolution. The Court granted the application and the matter proceeded to hearing. But before going to the trial proceedings, let me first summarise the cases made out by parties in their pleadings.

CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS

The claimants stated the various dates the 3rd defendant employed them individually and traced their individual trajectories upward to the rank of Directors in the Imo State Civil Service. The claimants stated that the Constitution, the Public Service Rules and other laws governed their conditions of service. They stated that in November 2015 or thereabout, the 1^st defendant directed the 3^rd defendant to suspend them indefinitely without salaries; and that by letters dated 19/11/2015 each of them was accordingly suspended without salaries. The claimants pleaded that, as at the time the letters of suspension were issued, the members of the 3^rd defendant was not constituted. The claimants also pleaded that, they were not issued queries before being suspended and that, no criminal case was pending against them at that time nor did they have any prima facie case established against them. They pleaded too, that they were not heard before they were found guilty of negligence of duty and that they have not received their salaries since May 2015. They pleaded further that, the Legal Practitioners Act and the Rules of Professional Conducts govern their professional conducts as legal practitioners and that, their suspension was unconstitutional and void. They consequently claimed the reliefs earlier set out above.

The defendants on the other hand raised the defence that the claimants did not serve them with the originating processes because they were purportedly served on the 2^nd defendant 30^th March 2017 and that, the writ had expired as at the time it was served on the 2^nd defendant. The defendants pleaded too, that the 2^nd defendant only got wind of this case when he went to Court for another matter and the case was called and that, he, the 2^nd defendant thereafter informed the Court that the claimants had been retired by the 3^rd defendant. The defendants also pleaded that, the claimants were issued queries on account of their misconducts and dereliction of duties and that, the claimants did not indicate in their answers to the queries that they had sued the claimants; and that, since the claimants’ answers to the queries were not satisfactory, they were retired on 27^th March 2017 or thereabout. It was equally pleaded that, since the claimants were suspended for gross misconducts on 20^th November 2015, they had stopped discharging their duties while the defendants had stopped paying them; and that, the suspension of 20^th November 2015 was done by duly constituted Imo State Civil Service Commission contrary to the pleading of the claimants that, the membership of the Commission was vacant at the time. It was further pleaded that the Imo State Civil Service Rules were obeyed in the actions taken against the claimants. The defendants pleaded too, that the claimants could be lawfully retired before attaining either 60 years in age or 35 years in service. The defendants pleaded also that the order of interlocutory injunction granted by the Court was granted in error, as the suspension and retirement of the claimants had taken place before it was granted and that, because this suit started de novo, the order is no longer subsisting, even if originally validly granted. Finally, the defendants pleaded that the suit be dismissed.

In reaction to the Statement of Defence, the claimants filed Reply to Statement of Defence. The claimants denied both that they did not serve the defendants with the originating processes and that they were served on the defendants on 30^th March 2017. The claimants pleaded further that this issue had been raised and decided earlier by this Court on 6^th October 2017 and that the defendants did not appeal. The claimants also denied that they were issued queries and retired on 27^th March 2017 or thereabout; and that, up till date, they have not received notices of the retirement. They also pleaded that, neither did they appear before any Personnel Management Board nor were they guilty of any misconduct and incompetence. They pleaded too, that this matter was sub judice as at 27^th March 2017 when they were purportedly retired. The claimants also denied that they ever stopped discharging their duties and that, after the purported suspension, the 2^nd defendant orally told them to continue to discharge their duties, and that he would ensure the withdrawal of the letters of suspension and that, since then, the 2^nd defendant had been assigning official duties to all of them which they have individually been carrying out accordingly.

Thus ended the cases made out by the parties in their pleadings. It was on the bases of these that each side purportedly led evidence and the parties supposedly canvassed addresses. And it is on these bases too, that the Court must determine the case. Next, let me now go to the trial proceedings.

TRIAL AND ADOPTION PROCEEDINGS

Trial commenced on 8^th March 2018 with the 1^st claimant as CW1. He adopted his written deposition of 20^th October 2017. CW1 tendered without objection exhibits A, B, C, D, & E, and his evidence-in-chief was brought to an end. He was subsequently cross-examined and the cross-examination concluded this same date. Thereafter, the 3^rd claimant was taken as CW2 the same day. CW2 tendered exhibits CW2A, CW2B, CW2C, CW2D, & CW2E. The examination-in-chief was brought to an end while the learned counsel for the defence asked for a date for cross-examination. The matter was adjourned to 25^th, 26^th April 2018 and 2^nd May 2018 for cross-examination and continuation of trial. It could not go on 25^th April 2018 due to the Law Week of the Owerri Branch. The next time the case came up was 2^nd May 2018.

On 2^nd May 2018, the learned counsel to the claimant informed the Court of the filing of the claimants’ reply to the Statement of Defence and additional witness deposition. The learned counsel applied for leave to allow witness to further testify, tender additional documents and make use of the additional written deposition in respect of the reply. The application was granted without objection. Thereafter, CW2 further testified by adopting her additional written deposition made 14^th March 2018. The attempt of CW2 to tender further documents was initially without objection, but the learned counsel for the defence midway into tendering these documents, changed his mind, and objected but later yet, rescinded midway again into the arguments of the objection, after he was satisfied of the admissibility of the documents. CW2 thereafter tendered, without opposition, exhibits CW2F, CW2G, CW2H, CW2J, CW2K, CW2L, CW2M, CW2N, CW2P, CW2Q, CW2R, CW2S, CW2T, CW2U, CW2W, CW2X, CW2Y, CW2Z, CW2AA, CW2BB, & CW2CC. The further examination-in-chief was brought to an end. The learned counsel to the defendants drew the attention of the Court to the fact that the Bar was full with many other cases yet to be attended to and applied that this case together with the sister case be adjourned; and on this basis, the two cases were adjourned to 21^st, 28^th & 30^th May 2018 for continuation of trials.

On 21^st May 2018, the matter came up as adjourned. On this date too, the learned counsel to the claimants informed the Court of a valedictory session for a retired judge and asked for adjournment to enable her attend. This application was not opposed hence, the matter together with the sister case and all other cases were adjourned off record, on this account, since the other lawyers present said they were supposed to be at the valedictory session too. The matter came up next on 28^th May 2018. CW2 was cross-examined and the cross-examination brought to an end on this date. The case proceeded to the third witness. The 2^nd claimant, Mrs. M.C. Ewerenem testified as CW3. CW3 tendered, without objection, exhibits CW3A, CW3B, CW3C, CW3D, CW3E, & CW3F. After the withdrawal of objection, CW3 tendered exhibit CW3G. Thereafter, the attempt of CW3 to tender another document was resisted and the objection was upheld and the document accordingly rejected. The examination-in-chief was, at this juncture, brought to an end. At this point, the learned counsel to the defendants asked for adjournment to cross-examine the witness on the ground that the Bar was full with many cases yet to be taken. The learned counsel for the defence equally asked that the previous date 30/05/18 to which the matter was adjourned be vacated because he had a function to attend in Abuja on that date. These applications were not opposed and were granted accordingly by adjourning the case to 12^th and 18^th June 2018 for continuation of trial.

The matter came up on 12^th June 2018 for cross-examination and the cross-examination was concluded on this date. Thereafter, CW4 was taken in evidence. C.N. Akowundu, who is the 4^th claimant, testified as CW4 too. He tendered, without objection, exhibits CW4A, CW4B, CW4C, CWAD, CWAE, CW4F, CW4G, CW4H, CW4J, CW4K, CW4L, CW4M, & CW4N. At this point, the evidence-in-chief was brought to an end. The learned counsel to the defendants asked for a date to cross-examine the witness, and on the information of the learned counsel to the claimants that the earlier date of 18^th June 2018 fell on a public holiday, the case was adjourned to 24^th September 2018, 8^th and 10^th October 2018 for cross-examination and continuation. The Court did not sit on 24^th September 2018 because, by that date, I had been transferred.

The Court sat next, November 28 2018, by which time, I had been granted fiat to complete my part-heard matters, amongst which this is one. On this date, the learned counsel to the defendants was absent, but wrote for adjournment on ground of ill-health while the learned counsel to the claimants informed the Court of his intention to recall CW1 and latter said he would apply that the defendants be foreclosed. At this point, the Court observed that the Reply to Statement of Defence filed by the claimants was incomplete, as some paragraphs were missing. Thereafter, the Court adjourned the matter to 6^th December 2018 for counsel to sort out issue of the missing pages with the Registry and for the application to recall witness. The Court did not sit on this date and the matter was further adjourned to 10^th December 2018.

On 10^th December 2018, the learned counsel to the defendants was absent too without reason. The learned counsel to the claimants urged the Court to allow the matter proceed in the absence of the learned counsel to the defendants, whom he said had been absent the third time on a roll. The learned counsel to the claimants applied for leave of Court to recall the CW1 to testify on the ground that the tardiness of the defence in filing their defence late made the claimants to file their Reply after the case had been opened and made it necessary to recall CW1 to further testify and tender consequential documents. The Court inquired from the Court’s Registrar: Simeon Ikpa whether notices of the Court’s sittings were sent to the defence counsel and he said yes, and showed evidence of delivery of text messages to the learned counsel for defence and the reply of defence counsel thereto. The Court, being satisfied that the learned counsel to the defendants received these text messages [hearing notices] and voice calls into his line (08065330222) from the Registrar’s line (08137258362) but deliberately decided not come without any reason, allowed the learned counsel to the claimants to proceed with the case; and granted the application to recall CW1.

CW1 was thereafter recalled and re-sworn and adopted his additional written deposition made 14^th March 2018. CW1 thereafter tendered additional 13 documents, which were admitted and marked exhibits CW1F, CW1G, CW1H, CW1J, CW1K, CW1L, CW1L2, CW1M, CW1N, CW1P, CW1Q, CW1R, & CW1S respectively. Thereafter, the learned counsel to the claimants closed the examination-in-chief. The matter was adjourned to the 12^th December 2018 for cross-examination and defence in view of the fact that it was been heard on fiat with an order that another text message be sent to the learned counsel for defence. On 12^th December 2018, the matter came up as adjourned. On this date, CW4 was cross-examined and without re-examination and discharged. Then, the CW1 was fielded for cross-examination on the evidence he gave on recall and the learned counsel to the defendants said he had no question for him. And he was accordingly discharged and the case closed.

The learned counsel to the defendants was called upon to proceed with his defence. The learned counsel said the sole witness they had said he was ill and was receiving treatment at the Federal Medical Centre, Owerri as at November 2018 and that, later he said he was in a private hospital in Lagos receiving treatment. The learned counsel said based on this, additional witness would be fielded and that, a motion to that effect was filed 14^th December 2018. The learned counsel said if the motion is unopposed and granted, he would take a date to field the said additional witness and close their case. The learned counsel to the claimants objected to the application on the ground that, it was brought in bad faith and to stall the proceedings. The Court upheld the objection, struck out the application, foreclosed the defendants and adjourned the case to 8^th February 2019 for adoption of final written addresses.

However, while hearing the sister case: NICN/OW/07/2017 – EGWUAGWU V. GOVERNOR OF IMO STATE & ORS, in which the learned counsel to the claimant filed exactly the same application as the one struck out in this case, it was then that the learned counsel to the defendants, for the first time, now disclosed that the witness to be substituted for the sick witness was right in Court and that, he was the same witness for this case. I then asked the learned counsel whether he had told the Court earlier on that the proposed witness was in Court and ready to testify, and he retorted that, it was only after granting the application that the issue of the witness testifying would arise. After asking the learned counsel to the claimants if he too was aware that the said proposed witness was in Court and he said he was just becoming aware for the first time, I ordered that this case file be brought back, set aside my order striking out the application for substitution, holding that, it was made in error, based on the supposition that the proposed witness, who was to replace the sick one, was not in Court. This file was brought back and the case reopened with the order striking out the application for substitution vacated for being based on misrepresentation and without objection from the both sides. Thereafter, the learned counsel to the defendants moved the application for substitution unopposed and it was granted, and the learned counsel to the defendants called upon to call his witness.

The defence was thereafter opened with one Zeph Iheanacho who testified as DW1. DW1 adopted his written deposition of 10^th December 2018 without tendering any exhibit and his evidence-in-chief was closed. DW1 was cross-examined. And under cross-examination, in reaction to whether he had any document backing his claim, DW1 said that he referred to a document called “The Official Register at the Ministry of Justice” which he said he did not bring. Under re-examination, before the learned counsel to the claimants objected, DW1 was asked why he did not come to Court with his exhibits, and he said, because the documents were in the custody of the Attorney-General who was in a function in Abuja. At this point, this line of re-examination was opposed on the grounds that, it was belated and an attempt to overreach. The learned counsel to the claimants argued that the office of the learned Attorney-General was a public office, which had been opened to the defendants since 7^th March 2018 when the Statement of Defence was filed and that, the defendants did not frontload these documents nor did DW1 refer to these documents in his evidence-in-chief. The learned counsel to the claimants thereafter urged the Court to close the case and order parties to file their final written addresses.

It was at this stage that the learned counsel to the defendants replied that if the justice of the case demanded that they be granted an adjournment that would meet the justice of the case, he prayed for a short adjournment. At this stage the Court said it would stand the case down for the learned counsel to go bring the documents and the learned counsel to the defendants replied that the documents were in the office of the learned Attorney-General and that, the Attorney-General was not around. The Court then asked whether these documents were pleaded in the Statement of Defence; and the learned counsel to the defendants replied that he did not come to Court with the Statement of Defence because, a lawyer took it from him the previous day to prepare the written deposition and did not return it and that he did not know that he would field witness. At this point, the Court refused the application on the grounds that it was not bona fide and called upon the learned counsel to the defendants to close his case if no further re-examination is being made. The learned counsel to the defendants said there was no further re-examination and closed the testimony of DW1.

At this point, the learned counsel to the claimants said, in the absence of any further witness on record or sworn deposition by the defendants, the learned counsel to the defendants should close his case. The learned counsel to the defendants replied that he had a third witness: Mrs. Celestina Ozokwere who had not signed her deposition and that they would need this third witness to tender the alleged documents. The learned counsel to the claimants thereafter replied that nothing had been frontloaded in respect of the said witness. The Court, invoking Order 32, Rule 1 and Order 38, Rule 16(3)(e) of the NICN Rules, and relying on paragraph 6 of the affidavit in support of the application for substitution, held that there was no further witness on record, the intention was to secure adjournment at all cost to stall the trial and closed the case of the defence and adjourned the case to 8^th February 2019 for adoption of final written addresses of the parties. And it finally came up for adoption on 28^th February 2019. To the adoption proceedings I now move.

On this date A.C. OKONKWO, who held the brief of C.O.C. Emeka-Izima, applied for time to enable the correct default fee to be paid after the Court observed that the correct default fee was not paid. This application was granted unopposed and counsel given till Friday 1^st March 2019. Amongst the documents couriered to me was copy of a Motion on Notice for Enlargement of Time by the defendants dated 7^th February 2019 and filed 8^th February 2019 on which it was assessed, the balance default fee of N2, 600.00 and stamped paid by the cashier on 01/03/2019. Thereafter, the claimants’ counsel, L.A. NJEMANZE adopted the final written address of the claimants filed first. The learned counsel to the claimants further adopted the reply on points of law. The learned counsel referred the Court to the unreported decisions of the Court of Appeal and the State Proceedings Law, which he promised to furnish the Court with. Uncertified copy of a judgment of the Court of Appeal Port Harcourt Division of 12^th December 2006 in Appeal No. CA/PH/191/2003 – Civil Service Commission Imo State & Anor v. Godwin Onyema Anuforom, and the State Proceedings Edict, 1994 were the two other documents couriered to me at Enugu by the Head of Owerri Division [Joy Nwachukwu]. The learned counsel argued that the defence actually corroborated the case of the claimants and urged the Court to grant the reliefs claimed.

Thereafter, the learned counsel for the defence adopted the final written address of the defence and urged the Court to dismiss the case. The case was subsequently adjourned to 15^th March 2019 for judgment. As the judgment was not ready on that date, it was further adjourned sine die till notices are sent to counsel when it is ready for delivery within the 90 days grace. The next duty is to summarise the final written addresses of the parties.

ADDRESSES OF COUNSEL TO THE PARTIES

Claimants’ Final Written Address

K.I. UDUMA franked the claimants’ final written address. The learned counsel formulated five issues. They go thus:

(i) Whether the 1^st Defendant has the statutory power to direct the 3^rd Defendant to suspend the Claimants indefinitely without salaries. [sic]

(ii) Whether the claimants who are Civil Servants in the established and pensionable cadre can be found guilty of negligence of duty without being heard. [sic]

(iii) Whether the Claimants were retired from Imo State Service. [sic]

(iv) Whether the Defendants can take any disciplinary action against the Claimants during the pendency of this suit and despite the subsistence of an injunctive order by this Honourable Court. [sic]

(v) Whether the Defendants traversed the allegations contained in the Statement of Facts. [sic]

Arguing issue 1, the learned counsel submitted that it was not in dispute that the claimants are civil servants. The learned counsel submitted too that by letters dated 19/11/2015 [Exhibits E, CW2D, CW3C, & CW4E], the claimants were indefinitely suspended from service by the 3^rd defendant on the directive of the 1^st defendant. The learned counsel opined that, the powers of the 3^rd defendants are spelt out in Part II of the Schedule to the 1999 Constitution. The learned counsel submitted further that, section 202 of the Constitution stated it clearly that the 3^rd defendant is not subject to the directive of anybody in exercising its powers. The learned counsel cited Duru v. FRN (2013) 6 NWLR (Pt. 1351) and Monye v. P.T.F.T.M. (2002) 15 NWLR (Pt. 789) 209 to buttress his point. The learned counsel submitted that, any attempt to control the 3^rd defendant in exercising its powers would be ultra vires Rule 04102 of the Public Service Rules [Exhibit CW3D] and that the 3^rd defendant must govern the State in accordance with law and strictly comply with the provisions of the Constitution and laws. The learned counsel further cited Hart v. Military Governor of Rivers State (1976) 11 SC 211; Nawa v. AG Cross River State (2007) LPELR-8294 (CA); Civil Service Commission Imo State v. Anuforom [supra]; Galaudu v. Kamba (2004) 15 NWLR (Pt. 895) 31; UNTHMB v. Nnoli (1994) 8 NWLR (Pt. 363) 376; and Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 on this points. There ended arguments on issue 1 and the learned counsel moved to issue 2.

On issue 2, the learned counsel argued that to satisfy the requirement of fair hearing, a person to be negatively affected by a decision must be afforded opportunity of being heard, by being served a notice of the allegations against him/her. On this, the learned counsel cited Yusuf v. UBN (1996) 6 NWLR (Pt. 457) 632; GARBA v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, and UBA v. Oranuba (2014) 2 NWLR (Pt. 1390) 22-23. The learned counsel submitted that, the claimants pleaded in paragraphs 15 and 16 of the Statement of Facts and 5 of the Reply and led evidence accordingly that, no queries were issued them before they were suspended. The learned counsel argued that, the defence did not directly traverse the said paragraphs 15 and 16 of the Statement of Facts but pleaded in paragraphs 4, 8, and 10 that the claimants were issued queries without stating who issued them and when they were issued.

The learned counsel submitted that the defence called only one witness who did not tender any document and displayed lack of knowledge of issues during cross-examination, apart from stating that he did not take part in any of the issues at stake. The learned counsel submitted that thus, the defence failed to discharge the burden placed on them. The learned counsel cited section 136 of the Evidence Act; Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) 290; and Alabe v. Yaro (2002) FWLR (Pt. 115) 793. The learned counsel submitted further that the Court could not rely on the mere ipse dixit of DW1 to find for the defence. The learned counsel submitted further that since queries were not proved to have been issued, it follows that the claimants were not heard before they were suspended and that, the purported suspension is therefore a nullity. The learned counsel proceeded to cite FRN v. Akabueze (2017) 17 NWLR (Pt. 1223) 547; Odigwe v. JSC Delta State (2011) 10 NWLR (Pt. 1255); Mpama v. FBN (2013) 5 NWLR (Pt. 1346) 176. There ended arguments on issue 2 and the learned counsel moved to issue 3, 4 & 5, which he argued jointly.

On issues 3, 4 & 5, the learned counsel submitted that the Imo State Public Service Rules having been made pursuant to section 197 of the 1999 Constitution and section 4(10) of the Pensions Act have constitutional flavour. The learned counsel cited a host of authorities on this amongst which was Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599. The learned counsel argued that since the claimants were in pensionable cadre, they were entitled, by virtue of section 4(1) of the Pension Act to remain in service until attainment of 60 years of age or 35 years in service, whichever comes first. The learned counsel submitted that, the claimants could not therefore be retired at the pleasure of the defendants without full compliance with the law.

The learned counsel cited Nawa v. Cross River State [supra]. Thereafter, the learned counsel addressed the issue raised in paragraph 5 of the defence that the claimants were retired on 27^th March 2017 or thereabout by the 3^rd defendant. The learned counsel argued that, this was during the pendency of this suit in which the defendants have fully participated before the purported retirement. The learned counsel argued that, the claimants denied that they were retired in paragraph 6 of their Reply and stated that, they were not served with the notices of the retirement and did not appear before any panel that found them guilty of any intransigence. The learned counsel submitted that the burden of proof in this situation rests with the defence that asserted the affirmative of retirement.

The learned counsel argued that, the defendants have failed to discharge this burden. The learned counsel argued that service of the originating processes in this suit was effected on the defendants on 30/05/2016 and that, the learned Attorney-General participated in the suit in person. The learned counsel urged the Court to consult its records for these and, cited Uzodinma v. Izunaso (2011) LPELR-2011 (CA). The learned counsel argued that, since the defendants were aware of this suit and participated in it, they must wait till its conclusion and that, any purported retirement before the conclusion, is illegal. The learned counsel cited Bedding Holdings Ltd v. NEC (1992) 8 NWLR (Pt. 260) 428 at 437-438, H-A, B-D; Governor of Lagos State v. Ojukwu [supra] 636, C-D; and FATB v. Ezegbu (1993) 6 NWLR (Pt. 297) 1. The learned counsel argued further that the defendants are by conduct estopped from asserting that the claimants had been retired because, by the averments in paragraph 7 of the Reply, the evidence of the claimants and documents tendered, there is proof that the claimants continued to discharge their duties in office and received official instructions from the 2^nd defendant, which were being carried out. The learned counsel submitted that, the defendants could not therefore blow hot and cold on this point.

The learned counsel subsequently submitted that there is no Statement of Defence before the Court, the defendants having been served with the claimants’ Statement of Facts on 23/10/2017 whereas, the Statement of Defence was filed 7/3/2018, well out of the grace period of 14 days without filing application for nor obtaining extension of time to so do. For this reason, the learned counsel urged the Court to discountenance the Statement of Defence. The learned counsel argued further that in the event that the Court countenanced the Statement of Defence, the defendants failed to specifically traverse the averments contained in the Statement of Facts as required by law. The learned counsel was of the view that, the specific allegations made in paragraphs 11, 12, and 15 of the Statements of Facts were not specifically traversed in paragraphs 3 and 5 of the Statement of Defence; and that, as such, no issues were joined between the parties: meaning that, the allegations of the claimants were admitted. The learned counsel cited Taiwo V. Adegboro [supra]; Ezeokonkwo v. Okeke [supra]; Lewis and Peat (NRI) Ltd v. Akhimien [supra] on this count and ended the address by urging the Court to hold that the claimants are entitled to the reliefs sought. I shall now move to the final written address of the defendants, which is the next in time.

Defendants’ Final Written Address

C.O.C. EMEKA-IZIMA franked the defendants’ final written address. In the introductory paragraphs of the address, the learned counsel to the defendants alleged that, following the refusal of the claimants to allow amicable settlement, the claimants hurriedly opened the case and took their time from 8^th March 2018 to 12^th December 2018 to conduct their case to conclusion and tendered all the necessary documents whereas, the defendants were not afforded the same opportunity, as they were forced to open and close their defence on 12/12/18, in spite of the fact that they still had an outstanding witness to call. Thereafter, the learned counsel formulated three issues for the determination of the case, to wit:

Whether the 3^rd Defendant has the right to discipline the

Claimants who were employees of the Defendants?

Whether the Claimants have proved their respective cases as to be entitled to the reliefs sought?
Whether the originating processes which were dumped in the office of the 2^nd Defendant for all the Defendants without any order for substituted service did no [sic] rob this honourable court of jurisdiction to entertain this suit?

In arguing issue 1, the learned counsel cited the provisions of section 5(2) of the 1999 Constitution and submitted that the 1^st defendant had the constitutional powers to personally discipline the claimants and could also do so through relevant commissioner; and that as such, A.E. Iheka and others rightly issued the claimants with queries, suspension and retirement letters. The learned counsel said all these documents are in the record of the Court as exhibits. The learned counsel submitted that, in the absence of any valid response to the queries within the 48 hours specified, the defendants were right to have suspended the claimants on 19^th November 2015 and also right to have carried out the other disciplinary measures meted to the claimants. The counsel also submitted that, as civil servants, the claimants could be lawfully disciplined. The learned counsel cited Gov. Kwara State v. Dada (2011) 14 NWLR (Pt. 1267) 384 at 416, G-H and submitted that, the provisions of section 178 of the 1979 Constitution expounded therein are also contained in the 1999 Constitution. By this, the learned counsel argued that the 3^rd defendant acted lawfully by exercising control over the claimants who were civil servants and urged the Court to resolve this issue in favour of the defendants. The learned counsel thereafter moved to issue 2.

On issue 2, the learned counsel was of the view that the claimants merely dumped all the documents tendered on the Court and that the Court could not embark on a voyage of discovery to unearth their relevance to the case. The learned counsel cited Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 538, 580-581, F-A; Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569 and A.N.P.P. v. Usman (2008) 12 NWLR (Pt. 1100) 1. The learned counsel argued that, on the other hand, DW1 gave evidence of the intransigencies of the claimants which continued for long, prompting the 3^rd and 4^th defendants to take steps to discipline them by issuing queries with the directive that they be answered within 48 hours of the receipt of same, which the claimants ignored, consequent upon which they were suspended on 19^th November 2015. The learned counsel submitted that, they were thus given opportunity to be heard but they rebuffed it. The learned counsel also argued that DW1 gave evidence that the claimants were lawfully retired. The learned counsel argued that the defendants could only be required to set up a disciplinary committee to look into the allegations of the claimants had they responded to the queries within time; and that, since there was no valid response, there was nothing to investigate, and that the disciplinary actions taken against the claimants were right in law. The learned counsel submitted that, arising from the foregoing; the claimants have failed to prove entitlement to the reliefs claimed. The learned counsel urged the Court to so hold and moved to his last issue.

On issue 3, the learned counsel opined that, it is an admitted fact that all the originating processes were served on one Vitalis Acholonu, who CW3 said was a subordinate staff of the 2^nd defendant. The learned counsel submitted that, Exhibit CW22 showed clearly that no attempt was made to serve these processes on the 1^st, 3^rd and 4^th defendants personally and there was no evidence of order for substituted service. The learned counsel argued that, the 1^st, 3^rd and 4^th defendants are juristic persons; and that the service on Vitalis Acholonu, who was not working in their offices was a nullity. The learned counsel cited Okpara v. N.C.S.B (2011) NWLR (Pt. 1248) 1, 22-23, B-C and Madukolu v. Nkemdilim (1962) 2 SCNLR 341 on the effect of failure to serve the originating processes personally on the defendants. The learned counsel argued that as a result this the Court lacks jurisdiction to entertain the suit, and urged the Court to resolve this issue in its favour. The learned counsel ended his address by urging the Court to dismiss the suit. That is the end of the final written address of the defendants. I move to the Reply on Points of Law filed by the claimants.

Reply on Points of Law by the Claimants

ONYINYECHI ODOEMENA franked the Reply on Points of Law for the claimants. In reaction to paragraphs 1.00-1.07, 2.00-2.07 in which the learned counsel to the defence raised the issues of refusal of the claimants to allow amicable resolution, hurried opening of their case, and allegations of bias against the Court, the learned counsel to the claimants argued that, the learned counsel deliberately misrepresented the facts in order to bemuse the Court. The learned counsel argued too that, as these issues did not arise from the pleadings of the parties, they amounted to extraneous materials, which the Court should not take into cognisance in resolving the matter. The learned counsel cited Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 and Order 45, Rule 2 of the NICN Rules 2017. The learned counsel referred the Court to its record of proceedings of 08/03/18, 28/11/18, 06/12/18, 10/12/18 and 12/12/18 and that, the defendants were served with the Statement of Facts on 23/10/2017 while they filed their defence on 07/03/18 to see that, the defence was given fair hearing contrary to the assertions of the defence counsel.

The learned counsel thereafter moved to the issue of section 5(2)(a) of the 1999 Constitution raised as given the defendants, particularly the 1^st defendant, the right to discipline the claimants and submitted that, it does not apply to the discipline of civil servants when construed. The learned counsel argued further that, rather, it is Rule 04102, which governs the discipline of the claimants and that the 1^st defendant had no role to play, but the 3^rd defendant had. The learned counsel submitted that, the since issues raised in paragraphs 4.02-4.06 of the 1^st defendant address were not pleaded, they should be discountenanced. The learned counsel cited Ehirim v. I.S.I.E.C [supra]. The learned counsel thereafter submitted that, the case of Governor of Kwara State & 2 Ors v. Dada cited by the defence is distinguishable from the present case, as it was decided under Decree 107 of 1993, wherein the jurisdiction of the courts were ousted, unlike in the present situation, where there is no provision of the 1999 Constitution that ousts the jurisdiction of courts; and that, in the instant case, all the defendants, especially the 3^rd defendant, did not act within their constitutional powers.

The learned counsel submitted that, in the instant case, the 3^rd defendant was directed to suspend the claimants, contrary to section 202 of the 1999 Constitution and Rule 04405 of the Public Service Rules, which says suspension could only be meted out when a prima facie case is established against a civil servant. Citing Rule 04103 of the Public Service Rules, the learned counsel argued further that it is only in respect of civil servants on levels 01-06 that the Civil Service Commission had the power to delegate full disciplinary powers to permanent secretaries and heads of extra-ministerial departments. Thereafter, the learned counsel moved to issue 2 of the defendants’ address.

The learned counsel argued that the case of Ogboru v. Uduaghan cited by the defence was not relevant as the claimants showed the nexus between the documents tendered and the case presented in the pleadings. The learned counsel argued that, the defendants failed to tender the queries and letters of retirement they referred to, while on the contrary, the claimants tendered documents showing that they were still in service. The learned counsel argued further that, DW1 admitted under cross-examination that he would not be surprised that the claimants were still working. The learned counsel then submitted that the claimants proved their cases by unassailed evidence. The learned counsel cited Gov Zamfara State v. Gyalange (2013) ALL FWLR (Pt. 658) 821 at 841, C-E. The learned counsel then replied on the issue of the juristic personality of the defendants and said, the claimants were never asked any question relating to the juristic personalities of the defendants. The learned counsel also replied on the issue of service of the originating summons, by arguing that this Court had earlier decided same, when it ruled on the preliminary objection filed by the defendants. The learned counsel referred to exhibit CW2F on this and submitted that, this Court had become functus officio on the issue. The learned counsel cited Idakula v. Richards (2001) 1 NWLR (Pt. 693) 111 to buttress his point.

The learned counsel submitted that, even sections 2, 4, and 7 of the State Proceedings Law 1994 permit the service of civil processes on the Attorney-General in suits against the government. The learned counsel also cited Hope Uzodinma v. Izunaso & 2 Ors [sic] 2LELPR [sic] to the effect that the appellant, having taken part in the suit, must have been fully aware of the processes in the suit before he took those steps. The learned counsel argued that, the object of all types of services is to bring to the notice of the other side and that, since the learned Attorney-General appeared in the suit for all the defendants, the defendants had notice of the proceedings. The learned counsel cited exhibit CW2F and opined that, it speaks for itself. The learned counsel also cited Ajibola v. Sogeke [supra] and Aro v. Fabode [supra] to the effects that, the defendants were aware of the suit and cannot complain of non-service at this stage. The learned counsel also cited Order 5, Rule 6 of the rules of this Court to the effect that, this Court may depart from its rules in the interest of justice. Thus ended the reply on points of law.

Having done with the reply on points of law, the next duty is to apply the law to the facts of the case and give a final decision. In doing these, l have painstakingly read all the processes in the case file and digested same. I have equally carefully studied the most important authorities cited and compared them with the facts of this case. I have equally carefully digested the evidence in their entirety, took note of the demeanours of witnesses and would make references to these pieces of evidence as occasions arise in this matter. I now proceed to give my judgment. The decision would be divided into two parts. Part A shall deal with decisions on preliminary issues while Part B shall deal with decision on the merits of the case.

THE COURT’S DECISION

Decision on Preliminaries

There are some extraneous issues that must and ought to be settled before delving into the merit of the case. These are three in number. The first is the issue that the defendants were not served with the originating processes. The second is the allegations of bias raised obliquely against the Court by the defendants’ counsel. And the third is raised by the learned counsel to the claimants, and is that the Statement of Defence was filed out of time without obtaining the leave of the Court to so do. I take them seriatim.

On the issue that the originating processes were not properly served on the defendants. The first aspect of it is that the originating processes were served out of time and the second aspect is that they were served on the 2^nd defendant, which is not personal service on the other defendants. The learned counsel to the defendants said these made the service a nullity and ipso facto, non-service on all the defendants. The learned counsel to the claimants replied by saying that the Court is functus officio on the issue, having earlier been raised and settled in this Court’s ruling of 6^th October 2017 and that, in any case, service on the 2^nd defendant was service on all the other defendants by virtue of the State Proceedings Edict.

My simple answer to this is that, examining exhibit CW2F, I found that the Court held that the case had progressed beyond the issue of service. I checked too and actually found that this issue was raised on 7^th April 2017 by the learned Attorney-General of Imo State himself who appeared in person on that date and that, the Court checked its records and pointed out to him that his assertion of not being served was wrong and that, there was proof of service in the file, and the issue of service was rested there before it was resuscitated after several proceedings and the Court gave the ruling that the case had progressed beyond issue of service on 6^th October 2017 when the Court held that the case had progressed beyond the issue of service and discountenanced the application filed on the issue. The learned counsel to the defendants cannot therefore resuscitate an issue that has been buried since 6^th October 2017 by mere raising same in the Statement of Defence and leading evidence thereof through the written deposition of DW1.

The issue had died and been buried and could only have been resuscitated at appeal if one had been filed within time since the delivery of the ruling, and definitely not before me, a brother judge of coordinate jurisdiction to the erstwhile judge that rendered the ruling. Thus, it is clear from this that, the issue having been raised and settled, divests me of the jurisdiction to reexamine it, being a decision of my brother judge. In a nutshell, the decision on the issue had rendered me functus officio, as rightly argued by the learned counsel to the claimants – see John Andy Sons & Co ltd v. National Cereals Research Institute (1997) LPELR-1619 (SC) 23, F-G, wherein the Supreme Court held emphatically that: “Once an issue or issues have been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow the parties to re-open the same issues before if for relitigation [sic]…” It does not matter whether the decision is final or interlocutory – see Shanu & Anor v. Afribank Nigeria Plc (2002) LPELR-3036. And a brother judge cannot reverse the decision of another brother judge of the same court, as in the instant case – see United Cement Company Nigeria Limited v. Itita & Ors (2016) LPELR-41146 (CA) 18-19, B-B, except under exceptional circumstances where such an order is a nullity – see Azuh v. Union Bank of Nig. Plc (2014) LPELR-22913 (SC) 34, F. Let me now examine whether the order was, by any means, a nullity. This, I have to do because of the importance of service to activation of courts’ jurisdiction: because failure to service originating processes divests a court of jurisdiction to entertain such matter.

I have checked by myself and found at p. 55 of file the endorsement copy, with an unpaged affidavit of service attached to it, which together constitute Proof of Service. I found the Proof of Service of the General Form of Complaint [the originating processes] on the Chambers of the Hon. Attorney-General on 30/5/2016, that is: 30^th May 2016 and accepted by one Mr. Acholonu Vitalis U. Thus, it was served well within the 6 months on the 2^nd defendant. But, there is the second aspect of the issue that the other defendants were not served. First, the learned Attorney-General, when he appeared on 7^th April 2017, announced appearance for all the defendants. By this conduct and his failure to raise the issue of non-service on the other defendants when the Court pointed out that there was proof of service, it followed that he had waived the right of the other defendants to complain of failure to serve them personally and agreed that, service on his office was sufficient service on the other defendants.

It has always being the law and practice, since the time of the Petition of Rights till date that government or its departments could be effectively served through the office of the Attorney-General, and such service would be good service – see Ezomo v. Attorney-General, Bendel State (1986) LPELR-1215 (SC) 19-20, F-B. Azubuike & Anor v. Government of Enugu State & Anor. (2013) LPELR-20381 (CA) 37, C-E. What is more, Order 7, Rules 1(1)(b) & (h)(vi) of the NICN Rules 2017 made it abundantly clear that service on the Attorney-General as government counsel is good service. This is the law that governs service of processes in the Court and not any other law. And what is more, this is even in tandem with section 7 of the State Proceedings Law 1994 of Imo State which says the attorney-general should be served when government or its department is sued, though not applicable in this Court by virtue of the fact that this is a federal court.

It is important to point out that the subsequent conducts of the Attorney-General himself and through his office who appeared on other occasions after 7^th April 2017 when the issue of non-service was first raised and settled amount to taken further steps in the proceedings and a waiver of the right to complain on failure to serve originating processes. The matter came up 26/04/2017, 21/06/2017, 07/07/2017. At least, the other defendants must have briefed the Attorney-General before he announced appearance on their behalf. One Raymond Okorie appeared on from the chambers of the learned Attorney-General on 21^st June 2017 and the matter was adjourned to 7^th July 2017 for hearing. On 7^th July 2017, nobody turned up from the office of the Attorney-General but a letter for adjournment was received from the office and opposed by the learned counsel to the claimants, even though, no defence had been filed.

The application for adjournment was refused and the originating summons was heard and adjourned for judgment on 6^th October 2017. It was on this date on which judgment was to be delivered that the issue of service was raised again for the second time, ostensibly by a motion supported by affidavit filed that same day. I cannot find the motion in the file but the affidavit in support is at p. 648 of file. The Court ruled that the case had progressed beyond issue of service and proceeded to read its decision on the originating summons. And the Court ordered that the case be fought on pleadings and ordered the parties accordingly. It could be seen that the decision of the Court that the case had progressed beyond issue of service is one without reproach – see Okiye v. The State (2014) LPELR-22194 (CA) 29, C-G and Union Bank for Africa Plc & Anor v. Ugoenyi & Anor (2011) LPELR-5065 (CA) 50, D-E.

It is therefore very much an abuse of the process for the defendants to still raise this issue for the very third time in its pleadings, and for the learned counsel to the defendants to canvass this at the final written address. It is even more so, when this is based on the pleadings and written deposition of DW1, after the initial affidavit filed on the same issue by the Attorney’s-General Chambers on 6^th October 2017 was discountenanced by the Court. Which is superior between affidavit and written deposition? This is more so when both the affidavit discountenanced and the written deposition of DW did not challenge the authenticity of the proof and affidavit of service of the same process contained in p.55 of file, particularly, when the CTC of affidavit of service filed up at p. 55 in the file by the Court’s bailiff was tendered and admitted without objection as exhibit CW2CC. One strange thing I found is that, the defendant pleaded that service was effected on the 2^nd defendant on 30^th March 2017 via one Mrs. Celestina Ozokwere, which is quite contrary to what I found at p. 55 of the file. This is more perplexing, because my further search of the file did not yield any service on 30^th March 2017. The only process I found bearing 30^th March 2017 was a Motion on Notice filed that date – see p. 56 of file. So, it is strange that the said Mrs. Celestina Ozokwere deposed to an affidavit on 6^th October 2017, stating that she was served the claimants’ originating processes on 30^th March 2017 – see p. 648 of file.

I think it is important to point out that the learned counsel is presumed to know better and must know better. He must know the proper means of proving service of a court’s process or its non-service. The proper means is to obtain a certified true copy of the Proof of Service in the Court’s file, which the bailiffs of courts are obliged to keep in the court’s file and not to procure a person in the office where the process in issue was allegedly served to depose to affidavit of service. The deponent/recipient, it must be known to the learned counsel to the defence, does not and could not have had or retained proof of service for her to be able to depose to affidavit of service because, it is not in her line of duties and interest to have this. The business of the deponent is to enter the processes received in the proper book kept for that purpose and ensure they get to the target officers. It is in the line of the duties of a bailiff of court and in the interest of the bailiff to retain both the acknowledgement copy and depose to affidavit of service making up Proof of Service of a process dully served and have these kitted up in the case file.

What is more, the deponent did not exhibit the recording of the processes in issue in their book. And even if this were exhibited, it cannot prove the issue, because the defendants could as well have failed to record the processes on the date received and enter them on a later date, either deliberately or otherwise. To disprove proof of service confirmed by the Court, the defendants must show that there is nobody in its office bearing the name Acholonu Vitalis U. named by the bailiff of the Court as the officer in the 2^nd defendant’s office that received the processes; and if there is, they must deny that he received the process on the date in issue or at all and further prove that his handwriting on the process was forged. And to do all these, the named person or any other person in whose presence the issue is alleged to have taken place, is the only person that could depose to the counter affidavit, because the issue is about peculiar facts within the knowledge of that person alone. It is only after all these are done that another person like Celestine Ozokwere could now usefully depose to counter affidavit that she received the same process on a different date – see Nwaudo & Anor v. Mba & Anor (2016) LPELR-40547 (CA) 60-61, F-B. She cannot refute that the said processes were served on Mr. Acholonu Vitalis U. on 30^th May 2016, not been the person stated to have received it. And she did not. The implication is that, the record of the Court remained unchallenged that the originating processes were served on the 2^nd defendant on 30^th May 2016. So, even if there is proof that the same processes were served all over again on the 2^nd defendant on 30 March 2017, which is not actually the case here, it does not in any way detract from the service of 30^th May 2016. The service on the 2^nd defendant on 30^th May 2016 therefore remained unassailed and sacrosanct.

In any case, the defendants and their counsel were not even consistent on the issue. They pleaded and led evidence that the originating processes were served on 30^th March 2017 on one Mrs. Celestina Ozokwere and that the 2^nd defendant only got to know of the existence of the case by accident when he came to this Court on 7^th April 2017, but the record of the Court on this date proved the contrary. The learned Attorney-General stated clearly that he was served with the originating processes on 30^th March 2017 and not that he got to know of the existence of the suit in the Court. The learned counsel to the defence, perhaps did not advert his mind to the fact that 7^th April 2017 was later than 30^th March 2017, and the learned Atoorney-General: Nlemedim, who admitted being served on 30^th March 2017 could not have said he was just being aware of the case, and he did not say so. And when the Court pointed to the learned Attorney-General that his assertion was not correct and that there was proof of service at p. 55 of file on the 30^th May 2016, he did not dispute this, but merely asked for a date.

There must be more to it why the learned counsel would abandon the proper place to ascertain the date of service and prefer to rely on an affidavit of service deposed to by a busybody who had no business deposing to such at all and a purported entry in receipt book in the Ministry of Justice. This is more so, when this fact is placed against the defence of the defendants that the claimant were retired on 27^th March 2017 and the claimants have countered this, saying they were not retired that date or any date at all, and that even if, such retirement would be illegal, having been done sub judice this matter. This is the logical reason why the issue of service of the originating processes later than the date of the alleged retirement was being repeatedly raised in order to confer legitimacy on the purported retirement, which ostensibly took place during the pendency of this suit and after the defendants were served. This is rather unfortunate! For this additional reason, the affidavit of service deposed by Mrs. Celestina Ozokwere, if there is anybody bearing that name in Chambers of the learned Attorney-General of Imo State, is suspect and cannot enjoy probative value, even if not challenged – Auwalu v. FRN & Anor (2016) LPELR-41171 (CA) 19-20, E-A. Apart from raising a prima facie perjury, it is also affected by the age-long principle that a document made in the course of a lawsuit is worthless – Magaji v. Ogele (2012) LPELR-9476 (CA) 96, B-E. The DW1 of DW1 on this issue apart from being classic hearsay evidence is also of doubtful veracity. DW1 did not work in the office of the Attorney-General and was not named as the person who received these processes. That this is so, I cite Ebonyi State University & Ors. v. Eteng (2012) LPELR-19973 (CA) 41-42, D-A, wherein, the Court of Appeal, expatiating on similar scenario observed thus:

“I cannot but observe that it was not the evidence of the Respondent that she “sent” the letter dated 12/2/2008, written by her lawyer to the 2^nd Appellant through the said 2^nd Appellant’s Secretary. According to the Respondent, it was her lawyer who wrote the letter that sent the same to the 2^nd Appellant through his secretary. Nothing was tendered before the lower Court to show that the Respondent’s lawyer sent the letter pleaded in paragraph 25 of the Statement of Claim at anytime, talk less of the manner in which this was done. I do not think one has to be a genius to know that the evidence of the dispatch/service on the Respondent is nothing more than hearsay…”

No wonder, having seen the folly of the approach adopted, the learned counsel to the defendants beat a retreat and abandoned canvassing arguments in respect of the date the originating processes were served and now settled with the issue of service on the Attorney-General not being service on the other defendants. Let me state, such an issue is not one to be raised in the Statement of Defence, as is the case now. Once Statement of Defence is filed, a party loses the right to complain of non-service or improper service of originating processes – see Obasanjo Farms Limited v. Muhammad (2016) LPELR-40199 (CA) 30-31, E-A.

If the defendants wish to challenge the records of the Court, which is what they have done clumsily, and that the office of the learned Attorney-General was not served or was served at a different date other than the one contained in the file, it must do more than it has done. It must frontally attack the proof of service contained in the file that, the processes in issue were not served on it on that date. It must also dispute that there is a person bearing Mr. Acholonu Vitalis U. in the Department of Civil Litigation of the 2^nd defendant as at 30^th May 2016, and if there is, it is that person that must be called upon to depose that he did not receive the processes in issue and not another person who said she received them at a different date. By the proof of service at p. 55 of file, an allegation, which enjoyed presumption of law, is made against a named person, if this allegation is to be denied, it must be denied by that specific person and not by a busy body. And all these must be done in a counter-affidavit, which must be served on both the judge and the registrar involved – Adegbuyi v. Action Congress of Nigeria (CAN) & Ors (2012) LPELR-8660 (CA) 43, A-F. A lawyer ought not to join in making the slightest allegations or innuendoes of such against a judge or an officer of court without being very certain of his facts.

When the Hon. Justice Anuwe told the learned Attorney-General on 7^th April 2017 that proof of service was in the case file and the Attorney-General did not protest this and did not bother to obtain a certified true copy of same till date, I think counsel should have been more careful in raising this issue again and again, as has been done in the present case, let alone, deposing to an affidavit indirectly challenging both veracity of what the judge said and the authenticity of the proof of service contained in the file and filed up by the bailiff of the Court, and to make matters worse, raising it for the third time at the final address stage and relying on the suspicious and weaker written deposition of DW1 that is tainted with classical hearsay. This is more perplexing when the learned counsel knows that the affidavit had been discountenanced, even when fully aware of the CTC of the proof of service tendered by the claimants as exhibit CW2CC. From all I have said above, the issue of service of the originating processes raised for the third time in this case and at the final address stage is gross misuse of the process of court and is accordingly dismissed. That being that, I now move to the allegations of bias obliquely raised against me.

The allegation, is made up of accusations that I allowed the claimants to hurriedly open their case when they failed to allow amicable resolution of the dispute and that while I gave the claimants very ample opportunity to conduct their trials by allowing them to tender all necessary documents, I did not give the same opportunity to the defendants by forcing them to open their defence and foreclosing them when they still had witnesses to call. The claimants’ counsel had argued that this is an extraneous issue which should not be taking into consideration by the Court and that the Court, in any case, by the records had been fair to the defendants.

I make haste to state that issue of bias must be extraneous to a case and cannot therefore form part of the pleadings, as the learned counsel to the claimants seemed to have reasoned. So, on this count, the argument of the learned counsel to the claimants is not correct. But I agree with the learned counsel to the claimants that the Court was fair to the defendants in the circumstance of this case. I go further to state that I did not in any way favour the claimants as the learned counsel to the defendants seemed to imply in his final written address. I am aware that allegations of bias must be raised timeously before the judgment is reserved and that once not raised then, it would be too late to raise it at an address stage or after judgment is delivered – see Ukah & Ors. v. Onyia & Ors. (2016) LPELR-40025 (CA) 27, A-C. But I think the appropriate thing for me is to appraise the facts and give a decision on this because of the implication of the slightest hint of bias against a court, which affects public trust in the judicature. This would enable a third party/public to judge. It must be noted however, that allegation of bias is not lightly made. A person who raised the issue of bias must support it with cogent evidence for any person to infer likelihood of bias – Itsueli & Anor v. Securities and Exchange Commisssion & Anor (2011) LPELR-4343 (CA) 46, D-F.

Now, this matter came up first before me on 17^th October 2017 and on this date, counsel to both parties were absent and the Court adjourned to 20^th November 2017 for mention with directive to issue counsel to parties with hearing notices. On this date, the Court did not sit. The matter came up next 5^th December 2017. While the counsel to the claimants was present that of the defendants was absent. There was information from the Court’s Registrar that both counsel agreed to 5^th December 2017 on the 20^th November 2017 when the Court did not sit. Case was adjourned to 11^th January 2018 for further mention with directive to issue notice on the counsel to the defendants. On 11^th January 2018, the matter came up as adjourned; the counsel to the claimants was present while that of the defendants was absent, in spite of proof of service at p. 183 of file. On this date, I adjourned the matter to 5^th February 2018 for hearing and ordered that fresh notice be issued on the counsel to the defendants, the defendants and the learned Attorney-General. The Proofs of Services are on pp. 184-189 of file. On this date, the learned Attorney-General of Imo State appeared in person and stated that the matter was actually firmed out but that he appeared for the day’s proceedings because they intended to initiate amicable settlement and that efforts were being made in that direction and that he had informed the learned counsel on the other side.

The learned counsel to the claimants stated clearly that the matter was slated for hearing and that he was ready to proceed with the hearing only for the learned Attorney-General to inform him that morning of the attempts to settle out of court. The learned counsel stated that the claimants had been on suspension since 2016 without pay and were suffering. The learned counsel said he would concede the adjournment for one month as prayed by the Attorney-General because he had appeared in person and urged the Court to adjourn the matter for report of settlement or hearing if the matter could not be settled by the next date. On the agreement of both counsel, the case was adjourned to 8^th March 2018 for report of settlement/hearing together with the sister case. On 8^th March 2018, the matter came up as adjourned and C.O.C. EMEKA-IZIMA appeared for the defence. The learned silk for the claimants informed the Court that no move had been made to settle the matter and that they were ready to commence trial. The learned counsel to the defendants retorted that the learned Attorney-General had made moves and that the Governor had asked for his legal opinion which he had rendered while the Governor was scheduling a meeting on this. Thereafter, the learned silk rejoined that just the previous day, the defendants filed their Statement of Defence, pointing out this as evidence of their intention to contest the matter, and urged the Court to allow the claimants to open their case, while such would not prevent out-of-court settlement. The Court acceded to the prayer of the learned silk for the claimants and allowed the case to be opened.

From the scenario painted above, in what manner could it be said that the claimants did not allow out-of-court settlement or that I allowed the claimants to hurriedly open their case? I think with the state of the facts available, this accusation is totally unfounded and lacks merit. Now, up till the matter was concluded, the defendants never made any further attempt to settle the matter. Like the learned counsel to the claimants rightly said, a civil case could be settled at any point in time, even after judgment. So, it is totally incorrect to say the claimants did not allow amicable settlement. And more incorrect is the accusation of the case been hurriedly opened. The case was adjourned for report of settlement/hearing with the concurrence of the Attorney-General, the Chief Law Officer of Imo State in person, and when settlement could not be made and the matter was opened, how on earth could it be said that it was hurriedly opened when that was what parties through their counsel agreed to? Then, it is very strange to find out that it was right there in the Court that the learned counsel to the other side was hearing from the counsel to whom the matter was firmed out that the Attorney-General, who appeared in person the last time, had made moves to settle the matter. Does courtesy not demand that the learned counsel to the claimants be informed before the date fixed for hearing of the progress made so far?

All the above show an element of lack of seriousness on the part of the defendants to settle the matter out-of-court; and the Court acted right in not acceding to their request to prolong an 8^th January 2016 case on a frivolous application made 8^th March 2018 to allow out-of-court settlement without any evidence that anything towards that line was being made by the defendants. That done, let me move to the accusation that the claimants were afforded ample time to conduct their case and tender all necessary documents while the defendants were denied this opportunity when they still had additional witness to call by foreclosing them and adjourning the matter for adoption of final written addresses.

As indicated above, this matter was opened on 8^th March 2018. There are four claimants altogether, and each pleaded, frontloaded and led evidence and tendered numerous documents as borne out by the record of proceedings, whereas the defendants, except the Register in the Ministry of Justice, did not plead or lead evidence to show it had any particular document to tender, nor did they frontload any document with their Statement of Defence as required by the rules of this Court. On this 8^th March 2018, the records bear it that the case was adjourned on the application of the defence counsel for cross-examination. On 25^th April 2018 when it came up next, the matter together with all cases listed on the Cause List for the day, were adjourned because it fell on the law week of the Owerri Branch, which all lawyers present in Court said they wanted to attend. On the 2^nd May 2018, when the matter came up next, the learned counsel to the defendants came late.

On this date, the learned silk for the claimants applied for leave to allow the witness to further testify in view of the fact that the defendants filed their defence on 8^th March 2018, the date the case was opened and they: claimants, filed their reply on 14^th March 2018 and additional depositions and documents frontloaded thereto. The defence counsel did not oppose this application, and it was granted accordingly. Thereafter, CW2 testified further and tendered 22 additional documents. At the conclusion of CW2’s evidence-in-chief, instead of the learned counsel to the defence to do the cross-examination, he applied for adjournment on the ground that the Bar was still very full with so many other cases still pending, and this application was not opposed by the learned counsel to the claimants, and was granted accordingly.

On the 21^st May 2018 when the matter came up next, the learned counsel to the claimants asked for adjournment on the ground that there was a valedictory court session for a retired judge of the State High Court going on right away, and this application was unopposed by by the learned counsel to the defendants. In fact, another senior lawyer: J.E. Ogamba applied for adjournment of all the matters fixed for the day on the ground that all lawyers present wanted to attend and I asked all the lawyers and they answered in unison that they wanted to be there. At this stage, all the cases were adjourned of record while this case was adjourned together with the sister case to the earlier fixed dates of 28^th May and 30^th May 2018. It came up as adjourned on the 28^th May 2018 and the learned counsel to the defendants cross-examined CW2 and CW3 was fielded thereafter in examination-in-chief. CW3 tendered 7 documents and ended her testimony. Again, the learned counsel to the defendants failed to proceed with cross-examination and prayed the Court to grant him an adjournment on the ground that the Bar was full with so many remaining cases to go and also prayed the Court to vacate the earlier fixed date of 30^th May 2018 because he would have a function in Abuja on that date. These applications were granted unopposed.

On 12^th June 2018, when the matter came up for further trial, the learned counsel to the defence cross-examined CW3 and the learned counsel to the claimants proceeded immediately with CW4’s examination-in-chief. CW4 tendered 13 documents and closed his testimony. Again, the learned counsel to the defendants asked for adjournment wherein the learned counsel to the claimants pointed out that the earlier fixed date of 18^th June would be caught by a public holiday. And the case was accordingly adjourned to 24^th September 2018, 8^th and 10^th October 2018 for cross-examination and continuation. It should be noted that before these dates just mentioned above, I had been transferred to the knowledge of both sides. The Court therefore could not sit due to my transfer and the need to secure fiat to finish the part-heard matters. When fiat was secured, the case was fixed for 28^th November 2018. On this date, the learned counsel to the defence did not turn up in Court but wrote for adjournment. However, the learned counsel to the claimants applied that CW1, who had testified and cross-examined, be recalled and that the defendants be foreclosed. The Court observed that the process before it was incomplete and directed the learned counsel to the claimants to sort this out and thereafter adjourned the case to 6^th December 2018 for the application to recall.

On 6^th December 2018, the Court did not sit and the matter was adjourned off record to 10^th December 2018. The Court sat this date and the counsel to the defendants was absent without reason. The learned counsel to the claimants stated that on 28^th November 2018 when the learned counsel to the defendants did not come, he did give reasons for why he did not send another counsel from his chambers to Court and that on the 6^th December 2018, to which the matter was adjourned, he did not turn up too and on this date he also did not turn up and being that the matter was being heard on fiat, the Court should proceed with the business of the day. The learned counsel restated that the tardiness of the defendants in filing their Statement of Defence late necessitated the filing of the Reply of the claimants after the case had been opened and thus the additional written depositions and the need to recall CW1 and that the witness was in Court. It should be recalled that this application had earlier been made on the 2^nd May 2018 without opposition from the learned counsel to the defence wherein it was granted and CW2 recalled and further testified. And at the end of the recalled testimony of CW2, it was the learned counsel to the defendants that applied for adjournment to cross-examine the witness. The Court then inquired from the Court 1 Registrar if there was any evidence that the learned counsel to the defence was notified of the day’s hearing, and he answered in the affirmative.

The Registrar: Simeon Ikpa stated that, when the defence counsel was notified, through text messages, the learned counsel to the defendants: C.O.C. EMEKA-IZIMA of the 6^th December 2018 date, he replied and said, okay, thank you my man; and when he subsequently notified him of the 10^th December 2018 date, he did not reply and that this notification he sent on the 6^th December 2018. The Registrar said when he got to Court on 10^th December 2018, he decided to call the learned counsel to the defendants first, when he did not pick, he sent him another text message, which he replied and stated in his reply that “I am yet to hear from the AG till now. So, I am in Abuja. I didn’t come.” At this stage, I asked the Registrar to show the text messages to the learned counsel to the claimants and a neutral counsel in the person of Mr. AKINOLA who was present in Court, and these were done. Both counsel confirmed the truth of the related contents. Thereafter, I personally read the text messages myself and confirmed the authenticity of the contents as related above. The Registrar’s GSM number was 08137258362 and the line of the learned counsel into which these messages were delivered was 08065330222.

Later, on this date, the learned counsel to the defendants sent another message and directed the Registrar to inform the Court that a lawyer from the Ministry of Justice, Owerri was coming to hold his brief, which message was received at 11:05am and I personally read it; and till the close of the Court’s business that day, no counsel came from the Ministry of Justice to hold the brief of the learned counsel to the defendants. In a short ruling, the Court observed that from the scenario painted above, the learned counsel to the defendants deliberately absented himself from Court and granted the application to recall CW1 and called the learned counsel to the claimants to proceed with CW1. CW1 now tendered additional 13 documents, which were admitted as exhibits. The further testimony of CW1 was brought to an end and the case adjourned to 12^th December 2018, the very third day, because the case was been had on fiat, for cross-examination and defence. The Court then directed the Registrar to send the learned counsel to the defendants text notifying him of the adjourned date and noted that, at 12:55pm, no lawyer had come from the Ministry of Justice to hold the brief of the learned counsel to the defendants as promised.

On 12^th December 2018, the learned counsel to the defendants turned up in Court and cross-examined CW4 and said he had no questions for CW1 and thereafter, the learned counsel to the claimants closed their case. When the Court now called on the learned counsel to the defendants to proceed to open his case, he said he had a situation at hand that his witness had been sick since November 2018 and had been receiving treatment at Federal Medical Centre, Owerri. The learned counsel stated further that when he called the said witness again on 24^th November 2018 he said he had been transferred to Lagos at a private hospital receiving treatment and that he immediately contacted the defendants to make available another witness and that, at the conclusion of the arrangement, application for leave to call additional witness was filed 11^th December 2018 while the claimants’ counsel was served right inside the Court. The learned defence counsel now stated that if the application were not opposed, he would take a date to prepare the witness against the next date to testify and close the defence.

The learned counsel to the claimants opposed these applications, saying they were made in bad faith to scuttle the conclusion of the matter. The learned counsel stated that there was no medical proof that the said witness was sick. The learned counsel pointed out that the affidavit in support was contradictory to the record of the Court in that the previous dates, especially 28^th November 2018, it was the alleged sickness of the learned counsel to the defendants that was responsible for the adjournment and not the sickness of the witness. In reaction to the absence of medical proof that the witness was sick, the learned counsel to the defendants said it was only after leave had been granted to move the application that it would become necessary to explain. On the issue that he had written on 28^th November 2018 that he was sick and not the witness, he said the argument was irrelevant that he could not have written then that the witness was sick, but now because the witness was sick was the reason for substituting him. At this stage, the Court called on the learned counsel to the defendants to move his application. The learned counsel to the claimants reiterated his objection to the application being moved on the grounds stated earlier.

The Court reviewed the facts and upheld the objection, struck out the application and foreclosed the defendants and adjourned the matter to 8^th February 2019 for adoption of final written addresses. The summary of the ruling was that as at 28^th November 2018 when the case could not go on because of absence of the learned counsel to the defendants, the reason given was sickness of the counsel himself and not that of the witness, yet the learned counsel stated later on 12^th December 2018 that he had been aware of the sickness of the witness before the 28^th November 2018. In addition, as 10^th December 2018, the reason why the learned counsel to the defendants was not in court was not because, the witness was sick, but simply because he has not heard from the Attorney-General, as contained in the message he sent to the Registrar of court earlier narrated above. The Court made the additional observations that to induce believe in an application like this, the learned counsel ought to have exhibited medical certificate of sickness and a letter granting sick leave to the said witness, who was a civil servant. These showed plainly the counsel was being economical with truth.

Having adjourned the matter to 8^th February 2019 for adoption of final written addresses, the Court took the next case, which was a sister case to this, that is: NICN/OW/07/2017 – EGWUAGWU V. GOVERNOR OF IMO STATE & ORS. The learned counsel to the defendants had similar application as the one just discussed above. It was while moving the said similar application that the learned counsel revealed, for the first time, that the witness substituted for the allegedly sick one was right inside the courtroom and was in fact the one that announced representation for the defendants and the same person who would have testified in the previous case. At this stage, the Court taken aback, asked the learned counsel if he had told the Court previously that the proposed witness was in Court and ready to testify, and he retorted that it was only after the grant of the application that the issue would arise.

After this retort, I went further to inquire from the learned counsel to the claimants if he was aware that the proposed witness was in Court, and he said no, and that he just became aware too. It should be noted that in moving the application for substitution, the learned counsel had stated clearly at p. 66 of record that “My humble prayer in the circumstance is that if my friend is not opposing the application, giving the nature of the application, we want to move the application today, and if granted, we would prepare the additional witness against the next date so that he can come to give evidence and we close our case.” He beat a retreat from the deception crafted on the Court when he probably realised the fate that would befall the second and similar application. From the above, it is very clear that the learned counsel was playing hide-and-seek-games with both the Court and the other side, and was trying to pull a wool over the faces of both the Court and the other side, with the sole aim of stalling the trial at all cost.

Despite this behaviour, I directed that this file be brought back and set aside my order foreclosing the case on the ground that the order was erroneously made on misrepresentation that the proposed witness was not in Court. This file was brought back and the case was reopened. Thereafter, the learned counsel moved the application for substitution without opposition. The application was granted and the learned counsel was called upon to field his witness. The defence was thereafter opened with one Zeph Iheanacho who testified as DW1. DW1 adopted his written deposition made 10^th December 2018 without tendering any exhibit, and his evidence-in-chief was closed. Under cross-examination DW1 reacted to the question whether he had any document to back up his claims that he referred to “the Official Register at the Ministry of Justice” which he said he did not bring. Thus, the cross-examination ended. Under re-examination, DW1 said he did not bring his documents to Court because they were in the custody of the Attorney-General who was attending a function in Abuja. This line of re-examination was opposed and on the ground that it attempted to overreach and that the office of the Attorney-General was a public office opened to the defendants since 7^th March 2018 when they filed the Statement of Defence, and that these documents were neither frontloaded nor referred to in the written deposition of DW1. The learned counsel thereafter urged the Court to close the case and order parties to file their final addresses.

The learned counsel to the defendants retorted that if the justice of the case demanded that they be granted adjournment to meet the justice of the case he prayed a short adjournment. At this point the Court said it would stand the case down for the counsel to bring the said documents from the office of the Attorney-General, the learned counsel replied that the Attorney-General had travelled. The Court then asked if these documents were pleaded and the learned counsel to the defendants answered that he was not with the Statement of Defence because he had given it to a lawyer to draft the written deposition the previous day and the person did not return it and that he did not know that he would field witness. From the above, it could be seen that the learned counsel wanted to stall the case at all cost, while pretending to be anxious for the case to go on. It is also very clear that the learned counsel to the defendants had deliberately been extremely tardy in the prosecution of the defence. At this point the Court refused the application for adjournment on the grounds that it was not made bona fide and called upon the learned counsel to the defendants to close his case if there was no further re-examination. The learned counsel said there was no further re-examination and closed the testimony of DW1.

At this point, the learned counsel to the claimants said in the absence of further witness on record or sworn deposition by the defendants, the learned counsel to the defendants should close his case. The learned counsel to the defendants replied that he still had a third witness to call, one Mrs. Celestina Ozokwere, who would tender the alleged documents. The learned counsel to the claimants then replied that nothing had been frontloaded in respect of the said witness. At this point, the Court invoked Order 32, Rule 1 and Order 38, Rule 16(3)(e) of the NICN Rules and also relied on paragraph 6 of the affidavit in support of the application for substitution to come to the conclusion that there was no further witness on record and that the intention was to secure adjournment at all cost to stall the trial. The Court thereby closed the case of the defendants and adjourned the case to 8^th February 2019 for adoption of final written addresses. This, I think is the basis for the accusation that the Court forcibly closed the case of the defence while they still had further witness to call and failed to give the defendants ample opportunity like the claimants to conduct their defence.

From the scenario painted above, it is very obvious that these innuendoes of biases against the Court are very much unfounded. First, by facts deposed in paragraphs 6, 7, 8, & 9 of the affidavit in support of the application for substitution, it is very clear that the defendants had only one witness to call. This was clearly stated in paragraph 6 thereof and this fact was reiterated in the learned counsel’s oral address in support of the application when he stated that he would only call one witness and close his case. A close perusal of the written depositions of DW1 revealed that he did not propose to tender any document other than the Official Register in the Ministry of Justice where processes received are recorded. This document was not frontloaded and neither was it brought to Court on the faithful day. Secondly, the said Celestina Ozokwere, whom the learned counsel touted as a third witness, even though listed as the 2^nd witness on the first list of witnesses that accompanied the Statement of Defence and as the 3^rd witness in the additional list of witnesses filed 11^th December 2018 did not have any written deposition. So, practically there was, in actual sense, no further witness on record to testify, the original and only witness who had written deposition, having been substituted with DW1.

When it is realised that the issue of not tendering the alleged documents only arose after the claimants’ counsel asked under cross-examination if DW1 had any document to back up his claims, and the learned counsel decided to inappropriately utilize re-examination to unearth the reason why the alleged documents were not brought to Court, it would be seen that, had this unnecessary question not been asked, the defence counsel would never have known that he ought to have tendered any document. It is clear that such damage could not be repaired under in re-examination. I am sure if the learned counsel to the claimants had known the purpose of cross-examination and refrained from asking this needles question, the learned counsel to the defendants would not have been woken up from his slumber that he did not lead his witness to tender any document.

Besides, the import of the application to grant adjournment to tender the alleged document was, in essence, an application to reopen the case and allow the defendants to perhaps amend their pleadings, prepare fresh written deposition and now frontload the said document, as there was no other witness with written deposition on record. It is clear that the defendants never prepared to tender any document, otherwise, they would not have failed to frontload the only document alluded to for more than 8 months on the flimsy excuse that it was locked up in the office of the Attorney-General. This is a document they could even have obtained certified true copy and tender from the Bar. And come to think of it, I don’t know the use to which the alleged document would have been put, when its purpose was only to show that the originating processes were served 30^th March 2017, in view of my earlier findings with regard to service of the originating processes in this case. And it is trite that application to recall is not granted as a matter of course.

When this scenario is construed along with the fact that the Court was ready to stand down the case for the defence to fetch the alleged document from the Ministry of Justice which was not far from the Court, and this was turned down on the flimsy ground that the Attorney-General had travelled and locked up the document, an ordinary register book for recording processes received then, it would be clear that the defence had other purposes than presented for wanting an adjournment, and I don’t think any Court would indulge such a contemptuous request for adjournment. It is strange such could be made a reason for asking for adjournment! The implication being that the learned counsel admitted that he never sighted the document before drafting the pleadings. No wonder the said document was never frontloaded with the Statement of Defence that had been filed since the 7^th March 2018: 9 months to the time the issue of asking for adjournment for the purpose of having access to the alleged document arose.

The legal conclusion to arrive at is that, no such document is in existence – Abdullahi & Anor v. Sadauki & Ors (2008) LPELR-3557 (CA) 42, D-G. If for 9 months the defence counsel did not know that he ought to frontload a necessary document and still failed to bring the said document to Court on the fateful day and after the learned counsel has failed twice to appear in Court without the Court invoking Order 38, Rules 9 & 10 of this Court to foreclose the defence, and knowing that the case was been heard on fiat, it would be foolish of any Court not to foreclose the defence the third day in the circumstance of this case as narrated above. Even more so, when the Court bent back to stand the case down for the counsel to fetch the said document not frontloaded and even when it would be necessary to bring a fresh witness and the counsel could not find any other excuse than that, the document was locked up in the office of the Attorney-General. The allegation that the defendants still had an extra witness listed, which the Court prevented them from calling cannot fly.

The mere listing of witness without following it up with the written deposition of such witness makes such listing stillbirth and a nullity – see Order 32, Rule 1 of this Court. This is more so when the listing had been done for about 9 months without the necessary written deposition. It is clear that the defence counsel crafted a dummy from inception of filing defence processes and deliberately created pitfalls that would enable him to stall proceedings, and was trying to sell the dummy to the Court, and the Court is bound to refuse to fall into the booby trap. Otherwise, the learned counsel would not have drafted defence processes for nine months and failed to have written depositions and frontload the necessary documents.

In the circumstance, it very clear that rather than indulge the claimants it was the defence that was being indulged as the claimants and their counsel were up and doing promptly in all matters connected with this case from its inception till conclusion while the defendants and their counsel [the chambers of the Attorney-General and the external counsel to whom the matter was firmed] demonstrated extreme tardiness from the inception till conclusion. It is as clear as daylight that the sole aim of the learned counsel to the defendants in this instance is to stall the trial of the case in the hope that the fiat would expire and the case would start all over again. I wish to state that all I have done in this instance are quite in tandem with the rules of this Court – see Order 32, Rule 1, Order 38, Rules 9, 10, 16(c) & (e), and Order 40, Rule 4. There is no rule that says a party must be given exactly the same length of time as given to his opponent to present his case.

What determine the length of time to be allotted to a party are: the number of witnesses called, number of documents tendered, the number of objections raised and rulings delivered and the complexity of the case. The claimants, who were four in number, tendered more than 60 documents in accordance with law and the defendants only pleaded and referred to one document in the written deposition of DW1, which was not frontloaded nor produced in evidence! On what ground should the defendants be given the same length of time as given to the claimants? The defendants were given ample opportunity to present their case as contained in their pleadings and the only written deposition. And when they did not frontload any document as required by law and did not produce any to be tendered in Court, they could not be heard to complain of not been treated fairly in the first instance – see The Chairman and Members of Customary Court Mbawsi & Ors. v. The State Ex-Parte, Nwosu (2014) LPELR-22852 (CA) 39-41, E-A.

It is not as if DW1 was prevented from testifying or from producing any document for admission. He took his time to testify and was cross-examined and re-examined and discharged. He was the only witness on record. And come to think of it, the learned counsel to the defence secured all the adjournments that prolonged the conclusion of the claimants’ case. Even the recall of CW1 and CW2 the defence counsel was responsible for it by filing the Statement of Defence late. I therefore hold very emphatically that the allegations of bias raised obliquely against the Court are rather unfortunate and totally unfounded. I move to the third preliminary point: that raised by the defendants’ counsel that there is no Statement of Defence before the Court, as the one filed, was filed out of time without the consent of the Court secured.

I shall not waste time on this. It is my view that it smacks of crass technicality and an attempt to steal a show on the defence by shutting them out of their defence in a manner reminiscent of springing surprises. The objection is belated. The Statement of Defence was filed since 11^th December 2018 only for the learned counsel to the claimants to raise this objection at the point of final written address. But I cannot close my eyes to the default fee, which has become due to government. In line with my decision in the sister where this same issue arose – see pp. 13-16, paras. 3-1 of the judgment in Suit No. NICN/OW/07/2017 – MRS. GLORIA E. EGWUAGWU V. GOVERNOR OF IMO STATE & 4 ORS [Judgment delivered 22/03/2019] thereof, I deem this Statement of Defence as properly filed and served, more so that the claimants have filed their Reply to it. I order the learned counsel to the defendants: C.O.C. EMEKA-IZIMA to personally calculate the default incurred on the Statement of Defence filed out of time and present it to the Registry for reconciliation and pay the correct default within 7 days of the delivery of the judgment. That meets the justice of the case. I now move to the judgment proper.

Decision on the Substantive Case

I have gone though the issues formulated by the counsel to both sides and dissatisfied with them. The five issues formulated by the learned counsel to the claimants, I considered prolix and those formulated by the learned counsel to the defendants, though concise, issue 1 is not relevant to the facts of this case, while I have treated issue 3 as part of the preliminary decision. I now formulate the issues, which I believe are concise enough and cover the breadth of the case. They are:

Whether the claimants have been retired from the service of Imo State?
Whether the defendants followed the due process of the law in disciplining the claimants?
If the answers to issues 1 & 2 are in the negative, whether the claimants are entitled to the reliefs claimed?

ISSUE 1:

WHETHER THE CLAIMANTS HAVE BEEN RETIRED FROM THE SERVICE OF IMO STATE?

The learned counsel to the defendants opined that the claimants had been retired from service. DW1 testified that this retirement took place on 27^th March 2017 or thereabout. The learned counsel to the claimants countered this and argued that on the contrary, there were no queries and letters of retirement issued to the claimants and that, the claimants had, sequel to the oral instruction of the 2^nd defendant that the suspension would be lifted and that they should continue their work, even been going to office since and working, with documents tendered in proof.

Now, the defendants pleaded in paragraphs 5 and 12 of their Statement of Defence that, “the claimants were retired on the 27^th March 2017 or thereabout by the 3^rd defendant.” DW1 repeated verbatim the same in his written deposition adopted in Court on 12^th December 2018. The claimants traversed this in their Reply at paragraph 6 thereof stating they have not been served with any letter of retirement and that this matter was even sub judice at the purported date of retirement and led evidence accordingly as contained in paragraph 7 of their individual additional written depositions deposed to on 14^th March 2018 and subsequently individually adopted in Court. Retirement, by its nature, has to and must be done at a very specific date; because of its centrality to determining the exact date of exit of an employee from service and other connected issues. The phrase “or thereabout” attached to the 27^th March 2017 when the claimants were purportedly retired, bedeviled the purported retirement with a cancerous element of uncertainty. It gives credence to the fact that the claimants had not been retired; otherwise, the defendants, who claimed to have retired them, would not have been in the dark about the specific date they were allegedly retired.

When the strange scenario above is viewed along with the fact that the defendants did not tender any document to prove the issuance and service of retirement notices on the claimants, it becomes clear that the claimants were never retired from the service of Imo State. Issue was joined on the existence of the retirement of the claimants and the service notices of same on the claimants. He who asserts the affirmative, is by law, required to proof and where he fails, it means the issue was not established – Famfa Oil Limited v. A-G Federation (2003) LPELR-1239 (SC) 11, C-D. Throughout the deposition of DW1, no mention was made of the existence of any document to prove the issuance and service of retirement notices on the claimants. No wonder, that the defendants were not even sure of the exact date the said letters of retirement were issued and served – see Gisda CYF v. Barrat (2009) EWCA Civ 648 CA at https://www.xperthr.co.uk in which it was held that, the effective date of dismissal is the date such letter/notice was received, opened and read. This statement of the law must equally be true in Nigeria and also applicable to compulsory retirement. It is commonsensical an axiomatic. There is even this Nigerian authority on effective date of letter of resignation: WAEC v. Oshionebo (2006) LPELR-7739 (CA) 17, D-F, in which the Court of Appeal opined on similar scenario thus:

“I pause here to discuss the law relating to notice of resignation, the law is that a notice of resignation is effective not from the date of the letter, nor from the date of any purported acceptance, but from the date on which the letter was received by the employer or his agent.”

I think the same must equally be true of letter of retirement/dismissal/termination from the employer to an employee. It must also take effect from the date it was received by the employee and not on the date the employer purportedly issued it and locked it up in its hidden sanctuary without being served on the claimants. What is more, the evidence of the claimants that they have not been served with letters of retirement was not controverted or shaken under cross-examination. And to make matters worse, the claimants gave evidence and tendered ample documents to show that they are still performing the functions of their offices till date – see exhibits CW4F sequentially to CW4N for CW4, CW3F for CW3, CW2G sequentially to CW2Z to CW2BB for CW2, and CW1F sequentially to CW1S for CW1. I therefore hold that since no letters of retirement had been served on the claimants till date, they still remain in service. Thus, issue 1 is resolved in favour of the claimants and against the defendants. I move to the issue whether or not the 1^st defendant had power to discipline the claimants and whether due process of the law was observed in the disciplinary measures dished out against the claimants: that is, issue 2.

ISSUE 2:

WHETHER THE DEFENDANTS FOLLOWED THE DUE PROCESS OF THE LAW IN DISCIPLINING THE CLAIMANTS?

It is not in dispute that the claimants were suspended. It is not also in dispute that the 1^st defendant ordered their indefinite suspension without pay. What are in dispute are: whether queries were issued to them before the suspension and whether due process of law was followed in so doing. The learned counsel to the defendants raised the issue of section 5(2) of the 1999 Constitution, which he said gave the 1^st defendant the power to personally discipline the claimants and through subordinate civil servants or public officers, hence, the claimants were properly disciplined. The learned counsel to the claimants said this is not so, and that it is only the 3^rd defendant that had the power, without interference of an external body, to discipline the claimants and that, the letters of suspension issued them were unlawfully issued.

The defendants pleaded and led evidence that queries were issued to the claimants but copies of these queries received by the claimants were not adverted to in the written deposition of the defendants nor frontloaded with the Statement of Defence, yet the claimants vehemently disputed the issuance of queries to them. The defendants pleaded and led evidence that the unsatisfactory answers of the claimants to the queries gave the impetus for their suspension and retirement – see paragraphs 8 and 10 of the Statement of Defence and paragraphs 10 and 12 of the written depositions of DW1. But in the written address, the learned counsel to the defence abandoned these, and instead, made a different case that it was because the claimants failed to answer the queries within 48 hours that they were suspended and retired. The law is that an issue raised on which no address is advanced is deemed abandoned – see Umar v. Bayero University, Kano (1988) LPELR-3358 (SC) 14, D-G.

The issue of unsatisfactory answers of the claimants to the purported queries was thus abandoned. Besides, this turn of event shows that the defendants were inconsistent in the case they presented to the Court and cannot therefore be believed – Uko v. The Liquidator, Utuk Construction and Marketing Company Limited in Liquidation & Ors (2011) LPELR-9120 (CA) 10-11, G-A. More so, since the defendants were the ones who asserted that queries were issued, and issue was joined on whether or not queries were issued before the claimants were suspended, the defendants had the burden to prove that queries were indeed issued and served on the claimants; since they pleaded unsatisfactory answers, produce these unsatisfactory answers given by the claimants. Failure in these respects only leads to only one irresistible conclusion, that the defendants failed to prove the issuance and service of the queries allegedly issued on the claimants; and I so hold.

Both sides are at consensus that without query, the claimants could not be suspended; otherwise, the defendants would not have insisted that queries were issued the claimants. Having found that no queries were issued and served on the claimants, as enjoined by Rule 04302 of the Imo State of Nigeria Public Service Rules 2001, logic commands that the rights of the claimants to fair hearing as enshrined in section 36 of the 1999 Constitution was breached [Exhibit CW3D] and that the letters of suspension were illegally issued or rather issued without authority contrary to Rule 04405 of the Imo State of Nigeria Public Service Rules. The justification of the irregular disciplinary measures meted out to the claimants on the altar of section 5(2) of the Constitution is, to say the least, an encouragement of executive lawlessness. Section 5(2) of the 1999 Constitution has nothing to do with civil/public servants.

All the authorities cited in support of the proposition that the 1^st defendant had the power to discipline the claimants were totally irrelevant to the facts of this case and the extant laws. Even if the conditions precedent to issuance of suspension were observed in the issuance of queries and consideration of the reactions of the claimants before the suspension, it is still the law that the appropriate authority issues the queries and the letters of suspension and without any external manipulation or coercion of any kind. The slightest proof of external meddling nullifies any such query and letter of suspension, as in the instant case. This requirement of the law is not without reason. It is to encourage the civil/public servants to do their works without fear or favour and to be loyal only to the laws of the land and not to any particular individual or official of government, however high that individual or official might be.

Without this assurance, no nation can expect to have performing civil/public servants, and without very vibrant and articulate civil/public servants, no nation can grow. It labours in vain if it aspires to achieve growth and development. The nature of the jobs of the civil/public servants, demand that they be given some measure of assurance, which is the reason why their tenures are secured by law and strict rules are made for their removal from office. These strict rules are all in the greater interest of the society. The earlier this is understood the better for the chief executives, civil/public servants and the society at large. It is for the foregoing reason that the employment of civil/public servants are said to have statutory flavours. Thus, anybody who attempts to tamper with this or attempts to bypass the rules, however highly plausible his/her reason might be and however highly placed the person might be, is unwittingly destroying the engine-room for galvanizing development in modern society, and as such, should not be encouraged. This is because the whimsical caprice of a single person or group of persons, however highly placed and knowledgeable, cannot surpass the time-tested wisdom that informed the protection of civil/public servants in all modern climes with provable positive results, according to the level of adherence to the spirit of the protection granted. That is the essence of rule of law. It prevents the exercise of naked power without recourse to laid down rules and subjects all men to the rule of law, instead of the rule of might.

It is this light that the letters of suspension issued to the claimants in the instant case must be viewed. Exhibit E, is the letter of suspension issued M.C. Uwasomba, the 1^st claimant. Exhibit CW2D is the letter of suspension issued to Edith C. Aguta, the 3^rd claimant, exhibit CW3C is the letter of suspension handed Enwerenem Margaret Chigozie, the 2^nd claimant, while Exhibit CW4E is the letter of suspension of Cletus Ndubuisi Akowundu, the 4^th claimant in this case. The letters are impari materia in all respects except with regard only to the names and designations of the officers. Paragraph 1 of each letter contains the following:

“I am directed to refer to letter Nos. SGI/S.00061/S.3/T.I/184 and HIS/S.155/VOL.III/505 dated 18^th November, 2015 and 19^th November, 2015 respectively on the above mentioned subject matter and convey His Excellency, the Executive Governor’s directive that you be suspended from Imo State Civil Service indefinitely without salaries with immediate effect for observed negligence of duty.” [Underline supplied for emphasis]

From the above, it is clear that the Governor of Imo State was the mastermind of the suspension and not the Civil Service Commission. Whoever wrote the letter of suspension merely carried out the imperial directive of the Governor. The defendants have not disputed this. Rather, this action and the purported but unproved retirement of the claimants were justified under section 5(2) of the 1999 Constitution. I have said earlier that section 5(2) of the 1999 Constitution has nothing to do with civil/public servants. It is cited out of context. It only gives the governor the responsibility [burden as distinct from power] to ensure the enforcement of a mass of legislations; even if the provisions are against his interest and not that the governor has the right to exercise any power that is not directly conferred on him by the Constitution or any other law. The hallmark of all constitutional governments/democracies is the rule of law, which subjects the exercise of executive powers to laws. That is the essence of constitutionalism and rule of law as against the rule of might. While it is true that the Governor is the embodiment of all the powers of the State [in ensuring the enforcement of these laws], the Governor’s exercise of these powers must and is subjected to the limitations imposed by the Constitution and these laws.

That is what is called rule of law, such that any attempt to bypass the strictures imposed by laws in the exercise of his powers would be cut down and declared null and void. Section 202 of the 1999 Constitution imposes a limitation on the powers of the Governor to discipline civil/public servants and judicial imprimatur had been given to this doctrine in a number of cases – see Hart v. Military Governor of Rivers State [supra] and Nawa v. AG Cross River State [supra]. The learned counsel to the claimants cited both. I consulted the Nawa’s case in (2007) LPELR-8294 (CA) 40-41, paras. B-G, 49, A-F and Hart’s case in (1976) LPELR-1355 (SC) 24-25, E-B. Hart’s case was very apt on this issue while interpreting section 64(1) of the defunct 1963 Constitution of Rivers State. It held at p. 24, C-F thus:

“A close perusal of the provisions of sections 64(1) and 67(1) of the Constitution referred to above shows clearly that while the power to remove a permanent secretary from his duty post as permanent secretary is in the Military Governor of the State, the power to dismiss him as public officer from the public service of the State or to exercise disciplinary control over him as such public officer is vested by the Constitution in the Public Service Commission of the State. That being the case, it seems to us that, by referring the disciplinary aspect of the matter to the Military Governor for decision as the Public Service Commission of the Rivers State had done in the case at hand, the Commission had abdicated its constitutional responsibility in the matter…”

Relying on Hart’s case, the Court of Appeal directly interpreted section 202 of the 1999 Constitution in Nawa’s case p. 40-41, para. B-G [supra] and came to the following conclusion:

“Therefore, the Governor of Cross River State having appointed the appellant (Permanent Secretary) upon the recommendation of Civil Service Commission of Cross River State as far as he remains in service, the Civil Service Rules and Regulations guide his appointment and matters of his discipline…‘There is no doubt that what the military governor did in the case in hand was ultra vires his constitutional power. This renders his order that the appellant be retired from the public service a nullity.’ It is therefore, not enough that a statute has conferred a particular power on a public functionary; it is of the essence that the recipient should be capable of exercising such power both in fact and in law.”

It therefore follows, as day follows night, that what both the Imo State Civil Service Commission and the Imo State Governor did [if in deed there was the Civil Service Commission in place at the material time] was contemptuous disregard of the Constitution, and total abdication of the functions of the Imo State Civil Service Commission. This cannot stand, it must be declared unconstitutional, null and void. In consequence, I hereby doubly declare the suspension of the claimants on the directive of the Governor of Imo State null and void and of no effect at inception.

Issue of whether or not there was the Imo State Civil Service Commission in place as at the time the suspension was carried out was raised. Issue having been joined on this, it became the duty of the defendants to prove the existence of the Commission as at the material time by tendering any document in proof of appointment of the members and their assumption of office. It is not a matter of just saying the members were duly constituted at the material time. This becomes more so when the Governor took over the direct functions of this august body without a whimper from it. Naturally, this raises the logical inference that the Imo State Civil Service Commission could not have been in place and abdicated its powers in the manner portrayed in the instant case. No document was adduced to show that the Commission was in existence. It has become commonplace in legal parlance that, he who asserts must prove.

Failure to prove the existence of the Imo State Civil Service Commission at the material time means, the Commission was not in existence, and not been in existence at material time, the Governor, who had the responsibility to inaugurate it, and failed, could not take undue advantage of its non-existence to usurp its powers. The Governor cannot benefit from his wrongdoing in failing to constitute the Commission by now using its inexistence as a reason to usurp its powers – see Saleh v. Monguno & Ors (2006) LPELR-2992 (SC) 31, C-D. To support this would give impetus to governors to completely phase out civil service commissions in Nigeria and usurp their functions simply by refusing to constitute them against the spirits of the Constitution that enjoin them to constitute same. The mere possibility of this danger should be enough warning to a court. A nonexistent body cannot delegate power; and any delegation done by the previous commission abates at its interregnum and revives only at the fresh constitution of the membership. The nonexistent Imo State Civil Service Commission at the material time could not have delegated its powers to discipline the claimants to the Governor or any other person – see Attorney-General of Kaduna State v. Hassan (1985) LPELR-617 (SC) 38-39, B-A.

And in any case, in the absence of statutory power to so do, the principle of law is delegatus non potest delegare – Bamgboye v. University of Lagos (1999) LPELR-37 (SC) 35, B-C “It is trite that a statutory disciplinary power cannot be delegated.” The defendants have not shown any statutory delegation of the powers of the Imo State Civil Commission to the Governor of Imo State to discipline officers of the calibre of the claimants herein. Hence, the illegal usurpation of the powers of the Imo State Civil Service Commission by the Imo State Governor is null and void, and all actions purportedly carried out under this usurpation are void and of no effect ab initio. For the up tenth time, the suspension of the claimants, is hereby declared null and void ab initio. Thus, issue 2 too, is resolved in favour of the claimants and against the defendants. I move to issue 3.

ISSUE 3:

IF THE ANSWERS TO ISSUES 1 & 2 ARE IN THE NEGATIVE, WHETHER THE CLAIMANTS ARE ENTITLED TO THE RELIEFS CLAIMED?

Issue 3 deals with the reliefs claimed. Before I go further, I need to address an issue, which I observed in the course of writing this judgment. I observed that only four of the five claimants listed in all the claimants’ processes from the start to the end, were actually pleaded and filed written depositions. The four claimants are: 1. M.C. Uwasomba, who testified as CW1, 2. Mrs. M.C. Enwerenem, who testified as CW3, 3. Mrs. E.C. Aguta, who testified as CW2, and 4. C.N. Akowundu, who testified as CW4. The fifth listed claimant is S.C. Ihezue. But I observed that documents were frontloaded for the four pleaded claimants with depositions and also for the unpleaded 5^th claimant, who has no deposition. I also observed that no documents were tendered in respect of this 5^th claimant and he did not testify at the trial.

But curiously, I observed that the letter of suspension of the 5^th claimant, marked CS/P.9/S.6/1V/280 was included in relief (iii) of the reliefs claimed, meaning that if the relief is granted, without notice, the 5^th claimant might be entitled to the judgment of the Court! I wonder why his name remained on the processes from the beginning to the end and without the learned counsel to the claimants applying for the name to be struck out. The learned counsel to the defendants too, did not appear to have noticed this, since he did not say anything about it in his final address or at any point in time. The corollary of the above explanation is that, the 5^th claimant: S.C. Ihezue, on the processes of the claimants has not proved his case; and I so hold. Only 1^st, 2^nd, 3^rd, and 4^th claimants proved their individual cases. This is not a class action for which the decision of Court entails benefits for all the members of that class irrespective of whether or not they participated in the trial, nor was the action brought in representation capacity.

Having resolved the two issues formulated in favour of the 1^st, 2^nd, 3^rd, and 4^th claimants and against the defendants, it follows logically that the 4 claimants must be entitled to some forms of reliefs, as the fruits of their success in the case. There is no dispute on the fact that the employments in issue were clothed with statutory flavour, yes, constitutional flavour, by virtue of sections 197 and 202 of the 1999 Constitution and the Imo State of Nigeria Public Service Rules 2001. It is trite that the remedy granted when there is proof that the tenure of an employment clothed with statutory flavour is unlawfully infringed, is reinstatement. This needs no citation of authority, as it has become, a matter of course. I have carefully examined all the reliefs claimed and found that they are all closely connected with reinstatement and ancillary issues. Since the 4 claimants have individually proved their respective cases, and the reliefs claimed are the logical reliefs granted in the situation of this case, the claimants have therefore proved their entitlement to all the reliefs claimed, without much ado. Thus, issue three, like the two previous issues, is also resolved in 4 favour of the claimants and against the defendants.

CONCLUSION

Having held that the 1^st, 2^nd, 3^rd, and 4^th claimants have successfully proved their entitlements to all the reliefs claimed, I hereby grant all the nine reliefs claimed in full, without exception, to the 1^st, 2^nd, 3^rd, and 4^th claimants individually. For the avoidance of doubt, I hereby grant reliefs (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) & (ix) in full to the 1^st, 2^nd, 3^rd, and 4^th claimants. The defendants are also ordered to pay to each of the 1^st, 2^nd, 3^rd, and 4^th claimants in this case cost of N200,000.00 [two hundred thousand naira only] each. The 5^th claimant: S.C. Ihezue, listed on the processes before this Court cannot and does not benefit from this judgment, having failed to prove his case as earlier explained before now. His name is accordingly struck out of the case, and his case not dismissed, since it was not heard at all. This is the judgment of the Court. The defendants are given a grace of 30 [thirty] days within which to comply with the judgment. Judgment is accordingly entered.