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BARRISTER RACHAEL CHINYERE NSOFOR-NDULUE VS GOVERNMENT

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN IN OWERRI

 

BEFORE HIS LORDSHIP: HON. JUSTICE I.S. GALADIMA

 

DATE: 11TH APRIL, 2019                                 

                                               

SUIT NO: NICN/OW/27/2017

 

 

BARRISTER RACHAEL CHINYERE NSOFOR-NDULUE                               

CLAIMANT

 

AND

 

GOVERNMENT OF IMO STATE

GOVERNOR OF IMO STATE

THE ATTORNEY – GENERAL OF IMO STATE                                             

CIVIL SERVICE COMMISSION, IMO STATE

 

DEFENDANTS

 

REPRESENTATION:

  • O.S AKINOLA FOR THE CLAIMANT.
  • C.O.C EMEKA-IZIMA FOR ALL THE DEFENDANTS.

 

JUDGMENT:

The Claimant was appointed a legal officer by the 4th Defendant and was attached directly to the Imo State Ministry of Justice by letter of appointment dated the 18/7/1995. Her appointment was duly confirmed by letter dated 31/7/1997. She benefitted from several promotions during the course of her civil service career until she attained Grade Level 17 (9) as Director of Estates and Trusts. She equally doubled as the Administrator – General of Imo State. She accordingly held these offices until April, 2015 when the Defendants allegedly arbitrarily suspended the payment of her salary and later in November, 2015 purportedly placed her on indefinite suspension. She, along with several of her colleagues who were also State Directors, accordingly suffered the same fate. Consequent upon the intervention of the Labour Union, a truce was brokered on the 9/2/2016 whereupon all the suspended staff of the State were recalled from suspension including the Claimant. However, whereas the other staff received their monthly emoluments, the Claimant was denied hers.

Initially, the Claimant filed a complaint on 5/5/2017 seeking several reliefs. The writ and other originating processes were however amended with the leave of Court granted on 12/12/2017(although same was filed on the 27/7/2017). The following 22 reliefs are hereby sought:

  1. A declaration that the Claimant’s employment within the Civil Service of the Government of Imo State, is statutorily flavoured.
  2. A declaration that the order of suspension of the Claimant’s salaries and allowances and her suspension from work is a nullity.
  3. A declaration that neither the Governor of Imo State or any other person is empowered to suspend or to withhold her salaries, benefits, and allowances without due compliance with the statutes, rules and regulations which govern and regulate her employment.
  4. A declaration that the order of her suspension by the Governor of Imo State without pay and in the absence of a duly constituted Civil Service Commission is a nullity.
  5. A declaration that her suspension without pay since May, 2015 without hearing from her, is in breach of her constitutional right to fair hearing and her constitutional right to work.
  6. A declaration that she is entitled to continue to act in her capacity as the Administrator- General of Imo State which office is different and distinct from the Director of Estates and Trusts from which she was purportedly suspended.
  7. A declaration that her suspension without pay done without prior communication of any particulars of wrong doing, is a nullity and therefore void.
  8. A declaration of court that the decision/directive of the 1st – 2nd Defendants as contained in both the letter of the Secretary of the Government of Imo State of 23/3/2017 and the extract from the Executive Council meeting of 16/3/2017 that the Claimant be prematurely retired or dismissed from service without affording the Claimant any prior opportunity to be heard before the decision was taken is ultra vires, unconstitutional, null and void and of no effect whatsoever.
  9.  An Order of Court setting aside the directive of the 1st– 2nd Defendants for compulsory retirement or outright dismissal of the Claimant from service as contained in the letter of the Secretary to the Government of Imo State reference number SGI/S.1162/X dated 23/3/2017 and the Extract of the Imo State Executive Council Meeting reference number IMEXCO/S.21/2/73 dated 16/3/2017 which directive was issued in violation of the Claimant’s fundamental right to fair hearing.
  10.  An Order setting aside the suspension of the Claimant without pay complained of in this suit.
  11.  An Order compelling the Government of Imo State to restore the Claimant to her employment.
  12.  An Order commanding the Government of Imo State to pay to the Claimant all salaries and allowances due and unpaid to her up to the date of judgment in this suit on her salary Grade Level 17 (9) – Gen35 from May,2015 up to the date of judgment.
  13.  An Order of Court restraining the Defendants from prematurely retiring the Claimant or dismissing her from the civil service of Imo State having not attained the age of retirement from service either by age or years of service or interfere with her employment howsoever in any manner inconsistent with the statutes, rules and regulations governing her conditions of service.
  14.  An Order commanding the Government of Imo State to pay interest to the Claimant on the judgment debt from the date of the suspension of her salary and allowances until the date of the judgment at the rate of 10% per month.
  15. Interest on the judgment debt at the rate of 20% per annum from the date of judgment until the date of final obedience to the judgment.
  16. Cost against the Government of Imo State in the sum of N500,000.00(Five Hundred Thousand Naira).
  17. A declaration that the 2nd Defendant, Governor of Imo State, has no known power or authority in law to unilaterally alter, jettison, change, or nullify the existing salary structure allowances and or employment benefits of the Claimant in the service of Imo State Government.
  18. A declaration that the Claimant as a law officer in the service of the Government of Imo State pursuant to the LAW OFFICERS’ (HARMONIZATION WITH MAGISTRATES) Edict No.5 of 1998 (now Law No.5 of 1998) is entitled to be paid or receive the same salaries allowances and employment benefits, currently being enjoyed by or applicable to Magistrates in Imo State.
  19. An order setting aside the Governor’s approval for the adoption of Enugu State salary structure as salary of Ministry of Justice, Imo State, contained in the letter from the Office of the Governor dated 3rd July, 2015 and signed by one Dr. Paschal C. Obi (Principal Secretary to the Governor) for being unlawful, illegal, an abuse of power and therefore unenforceable in law.
  20. An order that the Claimant in the Ministry of justice, Imo State as Administrator-General/Director in the service of Imo State Government should continue to receive and be paid her salaries based on the salary structure being used before the purported adoption of the Enugu State salary structure contained in the letter of 3rd July, 2015 and was used as a General Table in preparing and pay rolling the Law Officers for May 2015 salaries and that Claimant should be paid the short fall or difference as to the sums that she is being owed as per the directive contained in the letter of 3rd July 2015 till the date of compliance with the judgment of this Honorable Court.
  21. An order that none of the Defendants should take any step, whatsoever that will in any way or manner adversely affect or render nugatory or bad the case of the Claimant.
  22. ORDER Of PERPETUAL INJUNCTION restraining the Defendants either by themselves or their representatives, officers, aides, servants, agents, workers, successors or privies from unilaterally reducing or lowering or cutting or tampering with the existing salary structure of the Claimant in the service of Imo State Government and from victimizing the Claimant in any form, including withholding of salary or stagnated promotion or premature retirement or for dismissal from Service for instituting this Suit or for any spurious or unfounded allegations.

The Defendants on their own part, entered appearance and filed a joint Statement of defence along with other processes on 3/7/2017. The Claimant deemed it expedient and necessary to file a reply to the statement of defence on 8/6/2017. With issues now properly joined the matter proceeded to trial.

The Claimant initially opened her case on 30/1/2018 before my learned brother, Arowosegbe, J. and upon his transfer to another division of this Court, the case begun de novo before me on the 13/11/2018. Significantly, my learned brothers Anuwe J. and Arowosegbe, J. had made two crucial rulings while the matter was before them. They are the ruling of 9/6/2017 granting some interlocutory orders of restraint against the Defendants (per Anuwe, J) and the second, a ruling on the notice of preliminary objection challenging the Claimant’s cause for purportedly being statute barred delivered on 17/7/2017 (per Arowosegbe, J). I shall return to the significance of these orders in this suit in the course of my findings.

Albeit, the Claimant on 13/11/2018, adopted in open Court, both depositions of 27/7/2017 and her follow up further deposition of 8/6/2018. She tendered a total of 34 documents in her cause as follows:

  1. Offer of Appointment – Exhibit C1
  2. Offer of Appointment in pensionable establishment Exhibit C2.
  3. Notification of Appointment dated 14/8/1995 – Exhibit C3.
  4. Confirmation of Appointment dated 10/8/1998 – Exhibit C4.
  5. Affidavit of fire incidence on 15/6/2000 – Exhibit C5.
  6. Notification of promotion dated 2/9/1999 – Exhibit C6.
  7. Notification of promotion dated 14/9/2000 – Exhibit C7.
  8. Notification of promotion dated 27/1/2003 – Exhibit C8.
  9. Notification of promotion dated 18/7/2007 – Exhibit C9.
  10. Notification of promotion dated 8/5/2014 – Exhibit C10.
  11. Letter from Solicitor General Introducing the Claimant dated 14/9/2015 – Exhibit C11.
  12. Letter by Sterling Bank dated 11/9/15 – Exhibit C12.
  13. Letter by Sterling Bank dated 19/10/15 – Exhibit C13.
  14. Letter from H. A. G. Imo State introducing the Claimant dated 18/3/16 – Exhibit C14.
  15. CTC of Imo State Nigeria CSC regulation of 1994 – Exhibit C15.
  16. Letter from CSC Imo State dated 19/11/2015 – Exhibit C16.
  17. Communiqué issued by representatives of Imo State and organized Labour dated 9/2/2016 – Exhibit C17.
  18. Query of 28/9/16 – Exhibit C18.
  19. Claimant’s response dated 5/10/06 – Exhibit C19.
  20. Letter from C.S.C. suspending directors dated 7/11/2016 – Exhibit C20.
  21. Imo State Public Service Rules Revised to 1st Jan. 2001 – Exhibit C21.
  22. Letter of Commendation from Ministry of Justice dated 21/12/2000 Exhibit C22.
  23. Valedictory speech delivered by HAG dated 14/11/14 – Exhibit C23.
  24. 4 Sets of letters showing that the Claimant is a member of the law officers’ union who refused the slashing of salaries by the Defendants respectively and variously dated 10/7/15, 13/7/15, 13/7/15, 20/8/15 – Exhibits C24 (a-d).
  25. Letter dated 10/11/1994 titled harmonization of salary structure and conditions of service of law officer etc. – Exhibit C25.
  26. Benefits enjoyed by Magistrates in Imo State dated 13/10/2010 – Exhibit C26.
  27. Conveyance of approval for payment of law officers in Imo State the structure implemented in Enugu State dated 3/7/15 – Exhibit C27.
  28. Claimant’s pay slips (C.T.C) for December 2014 –April, 2015 GL 17 – Exhibit C28.
  29. C.T.C nominal roll of age – Exhibit C29.
  30. Directive for the harmonization of grades and salaries of Magistrates and Law Officers dated 23/11/1994 – Exhibit C30.
  31. Executive Council Decision on Law Officers in Imo State dated 23/3/17 from cabinet office where Claimant’s name was listed as one of those to be retired or dismissed – Exhibit C31.
  32. Law Officers (Harmonization with Magistrates) Edict, 1998 by Col. Tanko Zubairu Exhibit C32.
  33. Signed documents and receipts by the Claimant in 2017 (certified) to show that the Claimant was still an active civil servant acting as Administrator – General of the State – Exhibit C33.
  34. Notice of Discontinuance of 26/2/16 C.T.C. and Record of Proceedings of this Court of 18/2/16, 7/3/16 – Exhibit C34 (a -b) respectively.

The Claimant was cross-examined on16/1/2019 and thereafter closed her case.

The Defendants opened their defence on 12/2/2019 by calling a lone witness, one Mr. Zeph Iheanacho the Chief Executive Officer Litigation and Pensions in the 4th Defendant. No documents were tendered. He was cross-examined by the Claimant’s Counsel and thereafter, the Defendants too closed their case. This Court consequently ordered the parties to file their respective final written addresses in compliance with the rules of this Court and the case was adjourned to the 1/4/2019. In due compliance, they filed and exchanged their respective final addresses and successfully adopted them on the said 1/4/2019 whereupon this Court adjourned the case to the 11/4/2019 for judgment.

DEFENDANTS’ FINAL ADDRESS AND SUBMISSIONS:

 

The Defendants filed their final written address on 28/2/2019wherein they proposed three issues for determination in this matter, thus:

  1. Whether this suit is statute barred having regard to the applicable provisions of the Public Officers Protection Law?
  2. Whether the Defendants have the right to discipline the Claimant who was an employee of the Defendants?
  3. Whether the Claimant has proved her case as to be entitled to the reliefs sought?

On issue one which is whether this suit is statute barred having regard to the applicable provisions of the Public Officers’ Protection Law, it was submitted that this suit is time barred. This is accordingly based on the provisions of Section 2(a) of the Public Officers’ Protection Law CAP 106 Vol. 6 Laws of Eastern Nigeria 1963 (as applicable to Imo State) which is in pari materia with the Public Officers’ Protection Act, CAP P.14 Laws of the Federation of Nigeria, 2004. This law provides for three months for the institution and commencement of any action against an alleged default, act and/or neglect, of a public officer in the course of discharging or performing a public duty. They quoted and relied on section 2 of POPL and then submitted that it is not in doubt that the acts purportedly done on 20/11/2015 which this Claimant now complains of, was accordingly carried out in pursuance or execution of a public duty or authority within the meaning and intendment of Section 2 (a) of the Public Officers Protection. Law (supra).

It was further argued that the Defendants, being Public Officers in whose benefits the said Section 2 (a) of the Public Officers Protection Law {supra} applies, were indeed protected from litigations that were filed after three months of the acts complained of. Accordingly, it was clear and beyond argument that the cause of action in this matter arose on 20/11/2015. However, this action was commenced on the 5th day of May 2017, a period of over eighteen months from when the cause of action accrued to the Claimant.

Learned Counsel cited the cases of S.P.D.C.N LTD VS EJEBU (2011) NWLR (PT.1276) 324 at 343, paras E-F and ODUBEKO VS FOWLER (1993)7 NWLR (PT. 308) 637 inter alia, to submit that a statute of limitation extinguishes both the remedy and the right to maintain the action for the remedy.He also believes this Claimant is estopped from challenging the new salary structure that was voluntarily accepted by the law officers of the Ministry of Justice, Imo State and who have been enjoying same without any objection – per MABAMIJE VS OTTO(2016) ALL FWLR (Pt. 828) 883 SC.

Convinced by his arguments, the Defense Counsel urged this Court to refuse the Claimant’s reliefs as this was an issue that eroded this Court’s jurisdiction to entertain her purported cause.

On whether the Defendants have the right to discipline this Claimant, Counsel said that by the provisions of Section 5(2) (a) of the Constitution of the Federal Republic of Nigeria1999 (as amended) the 2nd Defendant, as Executive Governor, has the Constitutional powers to personally recommend the discipline of the Claimant. Accordingly, this power can be carried out through the relevant Commissioner in the Government of lmo State or any officer in the Public Service of lmo State including, as in this case, one Mr. A.E. lheka and others, who carried out the due process of disciplining the Claimant on behalf of the Defendants by issuing the Claimant with a letter of query, and subsequently suspension and retirement letters, (Exhibits C 18 and C20).

It was further submitted and argued that the Claimant ignored the query by refusing to respond to it on the excuse that there was no validly constituted Civil Service Commission in Imo State at the time which could have authorized the issuance of a query to her. He believes that in the absence of any form of valid response to the query within 48 hours as stated therein, the Defendants were not wrong to ratify the suspension of the Claimant which had earlier been issued to her on the 19th November, 2015 and also take other disciplinary steps deemed appropriate by the Defendants.

Counsel for the Defendants also wants this Court not to place any relevance on the letter of commendations admitted by the Claimant since her purported diligence was compromised when she became rogue and anti-government. Accordingly, her discipline was methodical and in standing with the laid down civil service rules. He cited and relied on the decision of the Supreme Court in Gov. Kwara State vs. Dada (2011)14NWLR (Pt.1267) 384, 416, paras. G-H to submit that the Defendants, particularly the 2nd Defendant, acted within their constitutional powers in exercising control over the Claimant when she was a member of the Civil Service of Imo State, urging that this issue be resolved in favour of the Defendants.

On whether the Claimant has proved her case to become entitled to the reliefs sought, the learned Mr. Emeka-Izima argued that the Claimant is not entitled to any of those 22 reliefs sought by her. He believes that the Claimant merely dumped so many documents which do not support her claims. He argued that this Court cannot embark on a voyage of discovery to ascertain the relevance of any of her documents – Per A.N.P.P V. USMAN (2008) 12 NWLR (PT 1100) 1.

Accordingly, theDefendants’ witness had testified that the Claimant’s attitude to her job immediately after the governorship elections in Imo State in 2015 became compromised and her handling of her official duties, unsatisfactory which led to the Defendants taking the necessary actions to curb her excesses. That she ignored the Defendants and their letter of query as such, after forty-eight (48) hours without response to the said query, the Defendants decided to ratify the suspension of the Claimant which had been issued on 19/11/15 but served on her on 20/11/15. Counsel argued on that the Defendants’ witness further gave evidence that the Claimant was validly and lawfully retired by the Defendants because of her gross misconduct and incompetence. It was submitted that the Defendants could only be required to set up a Disciplinary Committee to look into the allegations against the Claimant had the Claimant responded to the query validly within the stipulated time. Since there was no valid response received within the stipulated time, there was nothing to investigate by a Disciplinary Committee and all the allegations were deemed admitted by the Claimant.

Counsel therefore concluded that the disciplinary actions taken by the Defendants against the Claimant were valid. As such, the Claimant was lawfully retired from the Civil Service of Imo State. Finally, he said that based on his submissions, the Claimant was unable to establish any of her claims against the Defendants and therefore this Court should resolve these issues in favour of the Defendants.

CLAIMANT’S FINAL ADDRESS AND SUBMISSIONS:

 

On his part, theClaimant’s Counsel raised 6 issues for determination in his final written address of 14/3/2019 thus:

  1.  Whether the suit is statute- barred?
  2.  Whether the Claimant was lawfully suspended from duty in the circumstances of this case?
  3.  Whether the 2nd Defendant can lawfully direct the suspension or retirement or dismissal of the Claimant from service?
  4.  Whether the 1st– 3rd Defendants can unilaterally and arbitrarily change or revise downward the Claimant’s monthly salary/emoluments to the Claimant’s detriment and without her consent?
  5.  Whether the Claimant was given fair hearing in the events that led to this action?
  6.  Whether the Claimant is entitled to the reliefs claimed in this suit?

It was argued by learned Mr. Akinola preliminarily, that contrary to the submissions by the Defendants’ Counsel on the issue of the action being statute barred, the evidence before the Court established that while the Defendants claimed to have suspended the Claimant on 19/11/15, that purported suspension was generally called off and all Imo State Civil Servants placed on suspension including the Claimant, were recalled on 9/2/2016 less than 3 (three) months prescribed by the Public Officers Protection Law. Exhibit C17 was accordingly apposite. As such, the suspension of November, 2015 was overtaken by events. It was accordingly unfortunate, that despite the fact that there was no valid suspension against this Claimant, the Defendants still carried on with the wrong assumption that she was still under suspension and continued to unjustly deprive her of her emoluments.

Furthermore, Counsel said that the continued denial of payment of monthly salary to the Claimant constitutes a continuing injury as such the Claimant’s case is not time barred. Accordingly, in a case of continuous suspension or injury, the Claimant is entitled to commence an action to redress the wrong while the injury is continuous. Thus, this is an exception to S. 2(a) of Public Officers Protection Laws of the Eastern Nigeria CAP106 1963 which was cited by the Defendants’ Counsel. He cited and relied on the case of ATTORNEY GENERAL OF RIVERS STATE VS. ATTORNEY GENERAL OF BAYELSA STATE [2013] ALL FWLR (Pt 699) 1087 at 1105 – 1106 G- A, 1106 F- G, 1107 A.

Arguing on, he said that this Claimant’s cause of action arose from the 2nd Defendant’s revision of the salaries/emoluments of Law Officers in the State and that the Claimant timorously challenged this by joining with others to institute suit NO. NICN/OW/75/2015. He relied on Exhibits C24 and C27to further submit that that suit No. NICN/OW/75/2015 was indeed commenced within 3 three months of the issuance of Exhibit C27. Accordingly, the suit was later withdrawn to pave the way for an amicable settlement of the matter which never happened because the Defendants were purportedly not committed to its amicability. It was submitted that the commencement of this instant action by the Claimant after the withdrawal of Suit No. NICN/OW/75/2015 is competent and time does not run for purposes of limitation of action in the circumstances. See CBN VS. HARRIS [2017] 11 NWLR (Pt 1575) 54 at 82 A-C.

He said that besides, these Defendants failed to take into consideration, theClaimant’s other causes of action in this suit. For instance, in paragraph 49 of her Amended Statement of Facts, the Claimant drew the attention of this Court to the 1st– 3rd Defendants’ directive of 16/3/2017 and 23/3/2017 directing and obligating her compulsory retirement or outright dismissal from service which they were about implementing before thisClaimant commenced this action on 5/5/2017 well within 3 months. On 9/6/2017 the Defendants were restrained by this court from implementing the above directive in Exhibit C 31.

Furthermore, the Claimant had accordingly averred in paragraphs 13, 29, 31, 40, 42(b) and 49 of the Amended Statement of Facts, that these Defendants mistreated her when they deployed executive lawlessness, abuse of office, oppression, denial of fair hearing, victimization and bad faith in the manner she was singled out for oppression by them. Thus, theseDefendants who acted so recklessly, abused the powers of their respective offices and are therefore not entitled to the protection offered by S. 2(a) of the Public Officers Protection Law per – OFFOBOCHE VS. OGA LGA [2001] 7 S.C. (Pt III) 107 at 114 Lines 10 – 40.

Counsel is convinced therefore that theseDefendants’ contention that the suit is statute barred is unfounded as such, this Court must refuse their plea.

Now, arguing issues 1 and 2 isolated by Counsel for the Claimant together, which are:

  1.  Whether the Claimant was lawfully suspended from duty in the circumstances of this case? And;
  2. Whether the 2nd Defendant can lawfully direct the suspension or retirement or dismissal of the Claimant from service?

Learned Counsel submitted that this Claimant was not lawfully suspended from duty in the circumstances of this suit and that the 2nd Defendant cannot lawfully direct the suspension of the Claimant from duty. It was argued that in the first place, the 1st– 3rdDefendants are not the employers of the Claimant. The Claimant’s employment enjoys statutory flavour in that matters relating to her appointment, discipline or disengagement from service are strictly regulated by statute. He cited BOARD OF MANAGEMENT FMC MAKURDI VS ABAKUME [2016] 10 NWLR (Pt1521) 536 at 571 C- F as well as Rules 04305 and 04306(i) of the Imo State Public Service Rules Revised to 1st January, 2001 and Part IV Rules 21(1) and (2) of the Imo State Civil Service Commission Regulations 1994 – See Exhibits C21 and C15.

Accordingly, the above rules invested in the Claimant right not to be disciplined or disengaged from service except in strict compliance with the rules. See IDERIMA VS. R.S.C.S.C (2005) 16 NWLR (Pt951)378 at 401 E-G. That in OLANIYAN VS. UNIVERSITY OF LAGOS [1985] 2 NWLR (Pt9) 599 – it was held that Nigeria Public Servants within the established and pensionable cadre, do not hold their offices at the pleasure of Government. Rather their appointments are based on rules and regulations, statutes or memoranda of appointment.

The 4th Defendant (Civil Service Commission, Imo State) is for all intents and purposes, the employer of the Claimant and only it (the 4th Defendant), has competence to discipline or disengage the Claimant from service. This accordingly receives blessings from S. 202 of the Constitution of the Federal Republic of Nigeria (1999) (as amended) which provides that:

”In exercising its power to make appointments or to exercise disciplinary control over persons, the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any authority or person.”

 

– See Also Rule 04102 of Imo State Public Service Rules Supra (Exhibit C21).,

It was therefore indisputable that from Exhibits “C1”, “C2”, “C3” and “C4” the Claimant’s employment is statutorily protected. As such, and by S. 202 of the Constitution and the Imo State Public Service Rules and Imo State Civil Service Commission Regulations 1994, the 1st– 3rdDefendants have no competence to usurp the powers of the 4th Defendant in any disciplinary matter or matters concerning the employment and conditions of service of the Claimant. It is supposedly ultra vires the powers of the 2nd Defendant to summarily direct that the Claimant be queried, suspended, retired or dismissed from service. In purporting to usurp the powers of the 4th Defendant, the 1st- 3rd Defendants in their Executive Council cabinet meeting, directed that the Directors in the Imo State Ministry of Justice whose names were listed out (including the Claimant’s) be either retired or dismissed from service and presumptively one of those two punitive measures “must hold”. See Exhibit C31.

Said Counsel, the Claimant had testified that even the letter of suspension of 19/11/2015 issued by the 4th Defendant is incompetent as there was no Civil Service Commission of Imo State duly Constituted at that material time. This material evidence was not challenged by the Defendants – See GAJI VS. PAYE (2003) 8 NWLR (pt. 823) Pg. 583 at 605 A-C.

Referring to the cross-examination of his client as CW1 on 13/11/2018, she accordingly reiterated and further elaborated on the fact that the Civil Service Commission of Imo State was dissolved and not constituted at the time the purported letter of suspension was issued her. The Claimant accordingly further testified that Mr. A. E. Iheka who signed the letter of suspension of 19th November, 2015 (Exhibit C16) was only a Permanent Secretary in the Civil Service Commission and not the substantive Secretary of a duly constituted Civil Service Commission of Imo State. In corroboration of the Claimant’s evidence, the Defendant’s sole witness Mr. Zeph Iheanacho, Chief Executive Officer – Litigations and Pensions in the Civil Service Commission, Imo State, as DW1, accordingly testified under cross examination on 12/2/2019 that he was unaware of the fact that the CSC was not duly constituted under the law. As such, facts which are already admitted, need no further proof – per AJIBULU VS. AJAYI [2014] 2 NWLR (Pt 1392) 483 at 497.

Additionally, when the DW1 was accordingly asked under cross-examination to identify Exhibit “C27” (the letter written on behalf of the 2nd Defendant purportedly directing that a different salary structure applicable in Enugu State be applicable as new salary structure for law officers in the Ministry of Justice Imo State, the DW1 answered point blank that he had never come across that document (Exhibit 7) before.

Learned Counsel submitted that the Defendants’ witness was not a credible one since he could not give clear answers as to some of the acts of the Defendants which were purportedly done illegally and with ignominy. Therefore, this Court must believe that the letter of the 1st-3rd Defendants (Exhibit C27) directing that a different salary structure be applied in the payment of salaries and emoluments of law officers in Imo State including the Claimant, is contrary to the Provisions of the Law Officers (HARMONIZATION WITH MAGISTRATES) EDICT 1998, (now Law of Imo State) – that directive by the 1st– 3rd Defendants’ is accordingly ultra vires of the law and as such liable to be set aside.

Counsel submitted further that besides the fact that the letter of suspension was not issued by a competent authority, the purported suspension of the Claimant is totally groundless and unfounded in law. He cited the case of FCSC VS. LAOYE [1989] 2 NWLR (Pt 106) 652 to buttress his argument on this point expressing on that officers in the pensionable cadre of the civil service whose terms and conditions of service are governed by the Civil Service Rules made under the constitution, and therefore having a constitutional favour, acquire a distinct status which places their employment over and above the common law relationship of master and servant and introduced in these relationships the vires element of administrative law.

It was submitted finally on these two issues that the purported suspension of the Claimant, having not conformed strictly with the Imo State Public Service Rules, is a nullity and this Court was urged to resolve issues 2 and 3 above, against these Defendants.

On his issues 4, 5, and 6 which are whether the 1st – 3rd defendants can arbitrarily revise downward, the Claimant’s monthly salary/emoluments purportedly to the Claimant’s detriment and without her consent; whether the Claimant was given fair hearing in the events that led to this cause; and whether the Claimant is entitled to the reliefs claimed in this suit, Mr. Akinola argued the issues jointly and submitted first, that the Defendants cannot unilaterally and arbitrarily change or revise downward the Claimant’s monthly salary/emoluments to her detriment and without her consent. He further submitted that having denied the Claimant fair hearing as regards the sudden change in her salary structure which was replaced arbitrarily with another, the purported change of the Claimant’s salary different from what she was paid in April, 2015, is a nullity and as such the Claimant is entitled to her claims in this suit –  per FCSC v. LAOYE (supra) pg 699 E.

Learned Counsel further submitted that while the Claimant detailed what her monthly salary, emoluments and entitlements were in paragraphs 4 and 5 of her Statement of Facts and paragraphs 6 and 7 of her Re-Sworn deposition, the Defendants never in their pleadings stated what they considered as the correct breakdown of the Claimant’s salary/emoluments per month. It is not just enough for the Defendants to generally deny the exactitude and correctness of the figures stated by the Claimants as false without them going on to specifically plead the figures they considered as the correct monthly salary or emoluments and entitlements of the Claimant. Having not done so, they are accordingly deemed to have admitted the Claimant’s claim as regards paragraphs 4 and 5 of her Amended Statement of Fact. He cited the case of JUKOK INTL LTD V. DIAMOND BANK PLC (2016) 6 NWLR (Pt 1507) 55 at 114 A-B where it was purportedly held that a general traverse is evasive and purposeless.

That although what is admitted needs no proof, the Claimant who is seeking for declaratory reliefs went further to establish her case by tendering her letter of last promotion (Exhibit Cl0) which placed her on grade level 17(9) Gen35 as a Director in the Imo State Ministry of Justice. The Claimant also tendered in evidence her pay slips showing her earnings as a law officer/Director in the Ministry of Justice where she worked in dual capacity as Director of Estates and Trusts and as Administrator – General of Imo State (see Exhibit C28).

Counsel said further that the Claimant established that her emoluments as a law officer in the Imo State Ministry of Justice is regulated by the extantLaw Officers (Harmonization with Magistrates) Edict No. 5 of 1998, (Exhibit C32) and not subject to the whims and caprices of the Defendants. The Claimant accordingly also tendered documents on the harmonized grades and salaries of Magistrates and Law Officers in Imo State dated 23/11/1994 admitted as Exhibit C 30 along with a letter dated 10/11/1994 on harmonized salaries of Law Officers and Magistrates – (See Exhibit C 25). It is believed that this Claimant established her entitlement to her proper monthly salary/emoluments as stated in paragraphs 4 and 5 of her amended statement of facts.

Counsel stated that at the time of filing this address, the Defendants purportedly owed the Claimant arrears of salaries from the month of May 2015 to March 2019 in the sum of N22,110,571.43 (Twenty-Two Million, One Hundred and Ten Thousand, Five Hundred and Seventy-One Naira, Forty-Three Kobo) made up of the Claimant’s net monthly salary and allowances in the sum of N470,437.69 x 47 months. That this claim is unchallenged by the Defendants as such it must be deemed, admitted per – WAEC VS. OSHIONEBO [2006] 12 NWLR (Pt 994) 258 at 276 A-B.

It was further submitted that the Claimant is also entitled to her monthly imprest in the sum N100,000.00 per month for her dual offices as Director of Estates and Trusts and as Administrator General of Imo State i.e. N100,000.00 for both offices x 47 months = N4,900,000.00 (sic).

Counsel also believes that this Claimant was also able to establish in evidence, her entitlement to the following allowances:

Hazard                      N12,000 per month

Law Journal              N 8,400 per month

Up Keep                    N50,000 per month

Total – N70,000.00 x 47 months N3,290,000.00 (Three Million, Two Hundred and Ninety Thousand Naira).

It was submitted that the Claimant is entitled to the above sum of N70,000.00 (Seventy Thousand Naira) per month based on the (Law Officers (Harmonization with Magistrates) Edict NO.5 of 1998 of Imo State now law of Imo State, (Exhibit C32).

The Claimant’s Counsel also believes that by various letters, including those of Law Officers Association of Nigeria, Nigerian Bar Association, J. C. Uwandu & Associates dated 10/7/2015, 13/7/2015, 20/8/2015 admitted as Exhibits C24 (a-d), the Claimant established that neither the Law Officers nor herself accepted the imposition of a separate salary structure on her as directed in Exhibit C27. The Claimant further tendered Exhibit C34 being Notice of Discontinuance of suit dated 26/2/2016 and Certified True Copy of record of proceedings of 18/2/2016 and 7/3/2016 when the Suit No. NICN/OW/75/2015 was withdrawn from Court without any amicable settlement or terms of settlement. It is presumed the Defendants failed to prove any terms of settlement on which the above matter was purportedly settled even though averred by them in their pleadings. That their witness as DW1 even denied ever coming across Exhibit C27, so there was nothing to contradict or even controvert the Claimant’s case that there was no settlement at all in Suit No. NICN/OW/75/2015. The Claimant accordingly filed this instant suit when the Defendants reneged to call for settlement or discussions.

Learned Counsel further wants this Court to accept that the Defendants’ DW1 admitted that no Personnel Management Board meeting was ever set up pursuant to Part IV Rule 21 (1) and (2) of the Imo State Civil Service Commission Regulations of 1994 to try the Claimant after her reply to the query was allegedly found to be unsatisfactory. It is therefore crystal clear that the Claimant was denied fair hearing in the circumstances of the sudden suspension of her salary, her purported suspension from duty and continued deprivation of her entitlements and emoluments till date. Accordingly, the Defendants never gave evidence that the Claimant was validly and lawfully retired by them for gross misconduct and incompetence as in deed the DW 1even admitted under cross-examination that he brought nothing to court to establish that the Claimant was retired from service. Any act done in violation of the principles of fair hearing is a nullity, chided the Claimant’s Counsel. The right of a person to fair hearing is so fundamental to the Nigerian concept of justice that it can neither be waived nor be taken away by a statute whether expressly or by implication.This accordingly is why the apex court condemned the arbitrary practice of forcing a public servant into retirement before he gets to his retirement age which is capable of crippling him and that such retirement is null and void.Consequently, the Claimant urged this Court to resolve issues 4, 5, & 6 above in favour of the Claimant against the Defendants and grant the reliefs sought in this here suit.

The Defendants’ Counsel did not file a reply address.

COURT’S DECISION:

Before isolating the main issues which I consider necessary for the just determination of this suit, there is need for me to make some salient observations in answer to some of the questions raised by these parties.

First of all, the issue raised by the learned Counsel for the Defendants on this matter being allegedly time barred had already been settled by this Court in a ruling by my learned brother, Arowosegbe, J on the 17/7/2017. Importantly, he (this Court had) decided inter alia that the Claimant’s suit was not time barred in view of the fact that the Defendants’ actions complained of and being of a continuous nature, gave her the right to institute and maintain this cause. It is my informed view that the Defendants already had a bite of the cherry as such, I shall not allow them to once more raise an already settled issue. Besides, doing so is akin to sitting in an appellate capacity which is outside my judicial powers. The interesting aspect of this nonetheless, is that I completely and utterly concur with that ruling which in fact is in harmony with the recent Supreme Court decision in RMFAC V. AJIBOLA JOHNSON AND 10 ORS (2019) 2 NWLR (PART 1656) 247 AT 270-271 delivered on the 4th February, 2019 which held specifically that Section 2 (a) of Public Officers’ Protection Act does not apply to cases of contracts of service. That decision has now laid to rest the question whether this suit must be considered statute barred and thus affirms this Court’s jurisdiction to entertain this suit.

Secondly, the recent judgment in the case of GLORIA E. EGWUAGU V. GOVERNOR OF IMO (unreported suit no NICN/OW/07/2017) delivered on the 22/3/2019 by my learned brother Arowosegbe, J. was in respect of a cause with similar facts and circumstances with this case in that the Claimant there was one of the deputy directors suspended along with this Claimant by the Defendants. She inter alia challenged a letter of 16/11/2016 (Exhibit C20 in this suit) which purportedly indefinitely suspended her from office without pay and had asked this Court to declare it a nullity. This Court had pronounced that the Defendants’ act amounted to an illegality and therefore reinstated the Claimant awarding her all her reliefs sought. With the aid of that judicial pronouncement, the task before me is narrowed and I shall come to that shortly.

Thirdly, there obviously are certain issues that are uncontentious either because they have been admitted by both parties or are such that require no further proof of or because they are issues this Court can take judicial notice of. For instance, there is absolutely no doubt in anybody’s mind that the Claimant’s employment is statutorily protected. Which automatically means all attendant incidents associated with an employment of that nature, operate here as well. One of the issues raised by the Defendants’ Counsel as his second issue for determination was whether the Defendants have the right to discipline the Claimant. This issue is a no brainer at all.

In the case of SULEIMAN SARKIN FULANI AHMADU AND ANOR V. GOVERNOR OF SOKOTO STATE (2019) 1 NICLR 1, my learned brother, Damulak, J had pronounced on this and arrived at the right decision that it is only the State’s Civil Service Commission that is empowered to discipline the Claimant and only it can delegate any of its powers to any officer in the civil service of the State. This is because by virtue of Section 202 of the 1999 Constitution, only the Civil Service Commission is empowered to discipline and this is not subject to the direction, pleasure and control of any authority or person – see AUGUSTINE A. NAWA V. AG, CROSS RIVER STATE (2007) LPELR – 8294 (CA). In this instant case, the Defendants’ Counsel argued that the Governor of Imo State had the power to recommend the discipline of the Claimant and this was done through one A. E Iheka and others who had accordingly, carried out the process of disciplining the Claimant by the issuance of a query, suspension and retirement letters.  The Claimant’s Counsel argued otherwise insisting that since there was no validly constituted Civil Service Commission at the time of communicating those alleged letters to her, the Defendants acted ultra vires the provisions of Section 202 of the CRFN 1999 as well as rule 04102 of Imo State Public Service Rules, 2001. Hereunder is a reproduction of the suspension letter of 19/11/2015 which was admitted as Exhibit C16 –

*EXHIBIT C 16

CSC/P.9/S.6/IV/277                                                     19TH NOVEMBER, 2015

BARR. MRS. NSOFOR NDULUE R.C.

DIRECTOR OF ESTATE AND TRUST

MINISTRY OF JUSTICE OWERRI.

UFS:     THE PERMANENT SECRETARY,

            MINISTRY OF JUSTICE

            OWERRI.

RE: SUSPENSION OF ALL DIRECTORS IN THE MINISTRY OF JUSTICE:

 

I am directed to refer to letter Nos. SGI/S.00061/S.3/T. I/184 and HIS/S.155/VOL.III/505 dated 18th November, 2015 and 19th November, 2015 respectively on the above 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.

In the circumstance, you should handover all Government property under your custody to the next senior officer to you.

Please accept the assurances of the Commission’s highest esteem.

A.E IHEKA

PERMANENT SECRETARY/SECRETARY

FOR: CHAIRMAN.

 

My attention is drawn to the averment and subsequent testimony made by the Claimant that the Civil Service Commission at the time of communicating this letter was not duly constituted. The Claimant had in her testimony in Court stated that the above Commission had been dissolved by the Governor and was not duly constituted at the time of the purported Exhibit C 16 reproduced above. This is a fact that required a rebuttal if untrue, from the Defendants. However, this was never challenged whatsoever. I find it quite strange that a powerful allegation like this was not rebutted by the Defendants and even their response in their pleadings is to say the very least, weak. Being a constitutional body, the Civil Service Commission, like I had already explained, dictates the fate of the civil and public servants of the State where it is constituted. It therefore suggests that the Defendants admit this piece of unchallenged fact. If that is the case, it is no longer a matter requiring further contemplation. The letter of suspension dated 19/11/2015 is indeed, illegal. The effect is the suspension order purportedly communicated on behalf of the Chairman of the Commission directing the indefinite suspension of this Claimant is a nullity too and I so hold.

In any event, it seems the order quashing the suspension is even unnecessary giving that by the joint communique issued after the Government/Labour negotiation on the 9/2/2016 (Exhibit C 17), it was resolved amongst other things, that all suspended workers of the State of Imo including this Claimant, be recalled back to their respective positions. Thus, being a collective agreement on behalf of the affected workers and the State Government, it is improbable to accept that the Defendants are still inclined to want to discipline this Claimant for the purported acts she was alleged to have committed. Curiously, the reasons given for her discipline are stated to include unprofessional handling of cases involving the State Government, refusal to attend meetings summoned by the Governor, poor performance in government cases, inability and failure to control subordinates, gross acts of indiscipline and negligence of duty. Interestingly, none of these have been proven by the Defendants before this Court to justify suspending or terminating her appointment. The only way to have proven this of course, would have been with the production of an investigative report duly conducted by the Personnel Management Board, Senior Staff Committee of the Ministry of Justice in accordance with Section 21 (2) of the Imo State Civil Service Commission Regulations 1994 and enabling her to represent herself against the charges and a subsequent report from a disciplinary panel set up by the Civil Service Commission recommending the appropriate punishments or penalties to be meted against her if found in want. I am not convinced therefore, by the Defendants’ claim in the absence of any proof, that she was found guilty of any of those allegations. This notwithstanding, there is absolutely no further reasons for me to make more comments on the issue number two raised by the learned Counsel for the Defendants in view of the above and of course the recent decision in the case of GLORIA E. EGWUAGU V. GOVERNOR OF IMO per my learned brother. I abide by the portions of the decision which are in pari materia with this cause.

On the issue of the purported subsequent retirement of the Claimant, although there is proof before me suggesting that the Defendants actually directed the retirement of the Claimant (Exhibit C 31), it is however unclear if that directive was carried out by the 4th Defendant particularly in view of the absence of any retirement letter as physical evidence to that effect. The Defendants’ Counsel had argued rigorously that the Claimant was retired by the Defendants in the manner prescribed by the law. The Claimant had said that upon discovering the Defendant’s intentions to terminate her appointment, she had secured an order of restraint by this Court. The order of 9/6/2017 per Anuwe, J clearly indicates that the Defendants were inter alia, appropriately restrained from carrying out the directives of 23/3/2017 by the Secretary to the State Government (Exhibit C 31) instructing the Civil Service Commission (4th Defendant) from retiring or dismissing the Claimant pending the determination of this suit. It is my informed belief that the order be made perpetual against these Defendants giving my above reasons with regards to the manner in which she was indefinitely suspended. Accordingly, I hereby grant a perpetual order of injunction against these Defendants from retiring the Claimant prematurely and from dismissing her illegally and without justification. The Defendants are also commanded to refrain from harassing or intimidating her in any way, manner or form inimical to her continued service in the State.

 

It goes without saying that the directive made for the retirement or dismissal of the Claimant by letter dated 23/3/2017 by the SSG to the 4th Defendant, is null and void. The same is also hereby quashed.  As such, reliefs 8, 9 and 13 sought by the Claimant are here by granted.

I left the question of the query issued to the Claimant last in order to make some comments which I believe are pertinent. The Claimant had not sought for any order setting aside the said query issued to her perhaps because she realized she should not. The Defendants’ Counsel had in one of his submissions, mooted the fact that the Defendants, particularly the 3rd, has the power to query the Claimant where she is found in want. I completely agree with the learned Counsel for the Defendants. This is a valid reasoning more so since Section 27 (1) of the Imo State Civil Service Regulations 1994 expressly provides that each ministry shall exercise disciplinary powers over its staff in accordance with the Civil Service Rules. By subsection 2, returns of disciplinary actions indicating the particulars of the staff who is disciplined as well as the offences purportedly committed, shall be rendered to the Civil Service Commission within two weeks of the action. In line with the provision of Rule 04302 of the Imo State Public Service Rules, 2001 which is also applicable in this case, and which was also tendered by the Claimant as Exhibit C 21 as soon as a superior officer becomes dissatisfied by the behavior of any officer subordinate to him, it shall be his duty to so inform the officer in writing giving details of the unsatisfactory behavior and to call upon him to within a specific time, submit a written representation as he may wish to make, exculpating himself from further disciplinary actions. Exhibit 18 is the query issued on behalf of the Attorney General and Commissioner for Justice dated 28/9/2016 instructing the Claimant to within 48 hours of receipt of same, provide a response by this Claimant. Incidentally, it is unclear when the letter was received by her but Exhibit C 19 (A) is a response letter from the Claimant dated the 5/10/2016. Since the issue was never raised in any case, I might simply conclude by stating that this important and significant function to issue query as a disciplinary form of punishment against an errant officer, should not be watered down by this Court. In this instant case, I have no reservations against the query issued against the Claimant whatsoever. I therefore make no further comments on same.

On the question of the Claimant’s capacity as the acting Administrator – General of Imo State, it suffices to state with reference to Chapter 18 of the Imo State Public Service Rules 2001that an officer may be posted to fill in a position (and to act in the duty post and assume either fully or in part, the duties and responsibility thereof), which is available and in which no suitable person for the time being exists subject to approval of the State’s Civil Service Commission. For the purpose of confirming such approval, it is directed under rule 18101 that the Commission gives a notice in a gazette of the appointment of such acting appointment. The decision whether an acting appointment is necessary or desirable in any particular case rests entirely with the State’s Civil Service Commission – see 18102. It is also the intendment of the Rules that such acting capacity will normally be made only in order to fill posts that are temporarily vacant and their duration should be limited accordingly – rule 18103. There is a procedure to follow where an acting appointment is to be done and it is that any recommendation for acting appointments must be forwarded to the Imo State Civil Service Commission on General Form 66 and must include a certificate to the effect that the acting officer will assume full duties and responsibilities of the post in question. The date of commencement and the date of cessation of the acting appointment must also be gazetted by the Commission in compliance with rules 18105 and 18106. It is relevant to cite these apposite rules in order to determine the fate of relief number 6 which seeks for a declaration that she is entitled to continue to act in her capacity as the Administrator – General of Imo State which office is different and distinct from the Director of Estates and Trusts from which she was purportedly suspended.

For as much as I find that the Claimant has not produced any gazette indicating that she was confirmed to act as Administrator – General of Imo State, I am afraid I cannot grant the Claimant’s desire. What I have before me are Exhibit C 11 (A) – letter dated 14/9/2015 titled letter of introduction of the Administrator General of Imo State addressed to the Century Registrars in Lagos State; Exhibit C 11 (B) – attached new posting of directors etc. dated 11/5/2015 internal memo from the HAG to the Solicitor – General signed by Chukwuma-Machukwu, Ume (SAN); Exhibit C 12 – letter of confirmation of signature of the Claimant written by Sterling Bank on 11/9/2015; Exhibit 13 – another letter of confirmation of signature of the Claimant written by Sterling Bank on 19/10/2016; Exhibit C 14 – letter written by the HAG, M.O. Nlemedim titled introduction of the Claimant as Administrator – General and others within the Ministry of Justice as co – signatories to the Administrator – General’s Account dated 18/3/2016. There is no evidence of any gazette indicating the confirmation of this Claimant as the acting Administrator – General of the State. If there is, it was never tendered as an exhibit before me. It is therefore my opinion that relief number 6 shall not and cannot be ordered. The opportunity to enjoy an acting position is one that is made at the pleasure of the Civil Service Commission. The Claimant ingratiates herself by assuming that the acting position she occupied is as of right. There is no denying that she had been in occupation of such acting position without due compliance with the provisions of the Public Service Rules 2001 which she herself tendered in this case. So, inasmuch as the Defendants’ Counsel never argued or submitted elaborately on this issue, I am still bound to consider it squarely within the confines of the law. It is not for the Claimant to make any demand of this Court to allow her remain in that acting capacity.

I do not see any other way around the procedure for approval of the acting capacity of an officer of the State of Imo. The Commissioner for Justice is mandated to submit the name(s) of the person(s) he recommends for filling a vacant position and the Civil Service Commission, if it finds no reasons otherwise, must gazette such person’s name(s) stating the commencement date of the acting status and the date of cessation of such posting. If such person is later substantively confirmed as the office holder, that ought to be appropriately recorded as well. I do not know if this procedure was obsoleted by the Civil Service regulations in the State and even if it were, there is nothing placed before this Court to reckon with it. What I have is the law only and I am sufficiently bound by it.

With this said, I without any compunctions, set aside the interlocutory orders of restraint against the Defendants in connection with her acting capacity as the Administrator – General of the State. This of course neither impugns nor prevents the 4th Defendant particularly from duly confirming her as the acting Administrator – General of the State should it elect so to do giving consideration to the fact that she occupied the office for several years now and is likely to be considered the most suitable for that position.

It seems like a farce to state that the moment she filed this cause, she opened a can of cankerworms as to the manner of appointments duly or unduly done by the Ministry of Justice particularly in respect of acting positions. While I understand the need for it, it is important to ensure that such is done strictly in compliance with laid down ordinances. It follows therefore that her claims for arrears of salaries for the acting capacity as Administrator – General of Imo is limited to the provisions of rules 18201, 18202, 18203, 18205 and 18206 of the Public Service Rules of 2001. All references to the entitlements of any person in an acting capacity are subject to such person’s name duly gazetted by the Civil Service Commission. It follows also that insofar as I do not find any instrument suggesting the due confirmation as an acting Administrator – General of the State by the 4th Defendant, I cannot grant or make any orders for the payment of any purported arrears she says are owed her whether or not she held that position simultaneously and contemporaneously with her substantive appointment as Director of Estates and Trusts in the Ministry of Justice. It is however appropriate to consider all salaries and allowances received and benefitted while she held that office purportedly in an active acting capacity as ex gratia payments to her, and I so declare.

Having exhaustively dealt with the above questions in the forgone preliminaries to this judgment, the issues which I accordingly find to be requisite for determination by this Court are:

  1. What reliefs should be awarded to the Claimant having declared that her indefinite suspension from the Civil Service of Imo State was illegal, it not being carried out in accordance with the laid down civil service rules?
  2. Whether this Court should declare the purported imposition of another salary structure to be used as a template for the continuous payment of the Claimant’s salaries by the Executive Governor of the State of Imo as illegal and consequently liable to be set aside?
  3. Whether this Court should declare that the Claimant is entitled to be paid in accordance with the LAW OFFICERS’ (HARMONIZATION WITH MAGISTRATES) Edict No.5 of 1998 (now Law No.5 of 1998)?

Resolution of issue no 1:

There is no more disputing the fact that the Claimant’s salaries and other remunerations upon her suspension from the service, were withheld by the Defendants to date. Indeed, the Defendants did not negate this fact. Deeming it necessary to ensure the justice of this case, this Court accordingly orders the reinstatement of the Claimant to her position as Director for Estates and Trusts with immediate effect and for the payment of all outstanding arrears of salaries made up of her allowances from the month of May 2015 – when she was placed on indefinite suspension, to 31st March 2019, the last month before the pronouncement of this here judgment, a total period of 46 months.

This is the crucial aspect of this case. The reason is obvious because what the Claimant requests is her salaries based on what she last received in April, 2015 before the Governor purportedly arbitrarily slashed downward the salaries of law officers in the State. The reason why these parties are before this Court in the first place, is because of the refusal by the Claimant to accept the downgraded salaries. It will appear that all law officers as well as other civil servants in the State were affected by the review and the situation she complains of is not peculiar to her alone. It can be argued that the Claimant ought to be paid according to the template structure now in place and paid to all law officers in the State. Of course it was shown that the Association of Senior Civil Servants of Nigeria had commenced a suit against these Defendants as suit no NICN/OW/75/2015 which was discontinued on the 7/3/2016 (- see Exhibits 34 (A) and 34 (B). It seems that suit would have laid to rest the question of the template to be implemented in the payment of law officers in the State but for its unfortunate discontinuance. Albeit, the opportunity was captured by this Claimant to pursue that said cause now. I shall consider the question of the template to be adopted in the payment of her arrears of salaries shortly.

As for the imprest allowances claimed, the Claimant’s Counsel had submitted that she is entitled to be paid imprest for both offices she occupied from the period she was supposedly indefinitely suspended to date at a monthly sum of N50,000 per office which is N100,000.00 for both multiplied by 47 months. It is imperative for me to state emphatically that every department receives as imprest, an amount of money that is meant to be for office running, making minor repairs, paying utility bills, for minor services, buying stationery and small equipment that is necessary to keep the office going. It is like petty cash and paid out of the bulk sum received by the Ministry from central government purse. The bulk sum from the budget enables effective delivery of those services for which a Ministry is established. With that said, imprest allowances in Nigeria can be classified as ex gratia payments made at the pleasure of a superior officer to those he superintends. It is therefore not given as of right but a privilege to the beneficiary for the purpose of ensuring he works seamlessly without complaints. There is no disputing the fact therefore, that the Claimant is not entitled to be paid such claim. Her demand for it is hereby denied.

Resolution of issue no. 2:

Did the 2nd Defendant act illegally when he slashed down the salary of this Claimant? Of crucial significance also is what should be the template to be used in the calculation of the Claimant’s salaries? The answers to these 2 questions should in fact deal with the second issue for resolution by this Court.

The averment and evidence placed before this Court was that the 2nd Defendant obliterated the salary structure that was in place prior to 2015 and imposed a salary structure similar to what is obtainable in Enugu State and which is lesser. In proof of this, the Claimant tendered various documents. The ones to be considered in making a finding on this issue number 2 are as follows:

  1. Exhibits C 24 (A) which is a letter dated 10/7/2015 and addressed to the Governor titled Monthly/Comparative Analysis of Imo Salary Structure and Ministry of Justice Salary etc.
  2. Exhibit C 24 (B) which is another letter dated 13/7/2015 with the same title as the prior one and addressed to the Head of Service;
  3. Exhibit C 24 (C) letter from the Nigeria Bar Association addressed to the 2nd  Defendant dated 13/7/2015 titled Salary Structure of Law Officers, Ministry of Justice;
  4. Exhibit C 24 (D) is a letter written by the Law Firm of J.C. Uwandu & Associates dated 20/8/2015 addressed to the 2nd Defendant titled Demand for Unpaid Salaries and Allowances of Law Officers in Ministry of Justice;
  5. Exhibit C 25 is a document dated 10/11/1994 addressed to the Honorable Attorney General and titled Harmonization of Salary Structure and Conditions of Service of Law Officers in the Ministry of Justice with those of Magistrates in the Judiciary. It was signed by Dr. J.C.A. Nwogu for SSG;
  6. Exhibit C 26 is a document titled benefits enjoyed by Magistrates in Imo State dated 13/10/2010.
  7. Exhibit C 27 which is Conveyance of approval for payment of law officers in Imo State the structure implemented in Enugu State dated 3/7/15.
  8. Directive for the harmonization of grades and salaries of Magistrates and Law Officers dated 23/11/1994 – Exhibit C30.
  9. Law Officers’ (Harmonization with Magistrates) Edict, 1998 by Col. Tanko Zubairu – Exhibit C32.

Interestingly, amongst the above listed 9 exhibits, none of them is the actual template of salary structure approved for the payment of law officers for the period under consideration by this Court, that is from 2015 to 2019. The importance of this piece of evidence cannot be understated in view of the fact that it would have guided this Court convincingly about the structure of salaries paid to the various cadre of law officers in Imo State. A conveyance of approval made to the Accountant General of the State to commence the payment of salaries based on a given template, is also sine qua non in the determination of what salary template is duly approved for payment of Civil Servants by the Defendants. Such conveyance would usually expressly contain a clear directive and approval by the 1st Defendant, of the date of commencement of the approved template for payment to the benefitting or affected civil servants.

Curiously however, the Claimant did tender Exhibit C 27 which is in fact, a conveyance of approval for the payment of law officers similar to the structure implemented in Enugu State. This Claimant had argued that this letter was illegal and was done ultra vires the power of the Governor. The submissions and arguments made accordingly was that the 2nd Defendant is in no position to determine what salary is to be paid since the Law Officers’ (Harmonization with Magistrates) Law No. 5 purportedly provides that the salaries of law officers shall be the same as those given to Magistrates in Imo State.

I have examined meticulously the said Exhibit C 32 which was an Edict decreed by the then Military Administrator in 1998 (now adopted as Law No. 5 of Imo State, 1998). It provides in Section 3 (1) that “the salary and employment benefits of a law officer in a post in the State Ministry of Justice shall be the same as that which a Judicial Officer in an equivalent post in the State Judicial Service shall be entitled”. By section 5 of the law, a column is drawn up stating the equivalent positions and status of both Law Officers and Judicial Officers ranging from GL 17 down to GL 12 which is the entry point for both categories of public officers. I have absolutely no doubt in my mind that the intention of this law is to harmonize the salaries of both Law Officers and the Magistrates in the State. What the law does not provide however, is any template to be used in payment of the category of servants mentioned in the instrument. I am afraid the Claimant has not led credible and probable evidence to explain why she should be paid according to what she purportedly received prior to her suspension in 2015. She still owns the burden to exhibit the salary scale she was paid on and the requisite instrument being a conveyance of approval for payment of the said salary. I am aware that although the Defendants have not produced any exhibit to the contrary, this does not discharge the Claimant’s burden to prove this special claim.

It is not the duty of a court to speculate and work out mathematically, the actual monies on a phantom salary scale, that the Claimant is purportedly entitled to. The only method of arriving at an answer on the issue of the Claimant’s salary could only be elicited by credible and tested evidence at trial, which was not done in this case – Ladoja v Ajimobi (2016) 10 NWLR (pt 1519) 87 at 173.

The Claimant has therefore, not proven that the Governor acted ultra vires his powers when the payments of salaries were purportedly slashed downward from what was obtainable prior her indefinite suspension, and I so hold. Put differently, Imo State Law No. 5 of 1998 does not expressly impugn, abrogate or limit the Governor’s or the other Defendants’ powers, to provide any salary template or structure to be used in the payment of Law Officers and Magistrates in the State. If this were otherwise, then the previous Governments could arguably be said to have equally acted ultra vires when they adjusted the salaries of Law Officers and Magistrates prior 2015.

Accordingly, reliefs 17, 19 and 20 are hereby refused.

Giving the above reasoning therefore, the appropriate arrears of salaries to be paid to the Claimant following my declaration that her indefinite suspension was in deed illegal, is what she would have earned but for her suspension from May 2015 to March, 2019 and continuously based on the current salary template used and implemented for all cadres of Law Officers in the Ministry of Justice. Specifically, the Claimant shall be paid all her withheld salaries based on the current structure as the substantive Director of Estates and Trusts. It is hereby ordered that her salaries for the 46 months in which she was placed on suspension, be remitted to her within 30 days of this judgment and in default, the same shall attract 10% interest until fully liquidated.

 

 

 

Resolution of issue no. 3:

The third and last issue for resolution is whether this Court should declare that the Claimant is entitled to be paid in accordance with the Law Officers’ (Harmonization of Salaries with Magistrates) Edict 1998 or Law No. 5 of Imo State? Being an existing law, it is presumed to have effect and deemed to be a law made by the House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the Constitution to make laws – see Section 315 (1) (b) CFRN 1999.

While resolving issue number 2 above, I had pointed out that what the law essentially intends to achieve is the harmonization of the salaries of Law Officers with those of Magistrates in Imo State only so that they receive the same salaries without disparity. The Claimant unfortunately, has not tendered any document as evidence indicating what template is used for the payment of Magistrates or even Law Officers in the State. This is important in order to sustain and substantiate her claim to whatever salary is purportedly meant to be paid to the Law Officers as staff of the Ministry of Justice. Additionally, there is no way for this Court to determine if there are any disparities in salaries currently paid to the Magistrates and Law Officers in Imo State as this is an issue requiring evidence. All the exhibits tendered in the Claimant’s bid, were mostly letters written to the 2nd Defendant cautioning him on the existence of Imo State Law No. 5 and why it was necessary to abide by its letters. The law itself is silent on what structure is to be implemented for the payment of the salaries of the categories of civil and judicial servants captured therein. So, whereas I do concede that the Law needs to be duly complied with, I cannot go beyond such declaration to make any ancillary order for payment of salaries based on what was never provided by that law, or placed before me or on a phantom salary structure.

More so, Section 315 (2) of the 1999 Constitution (as amended) confers powers on the “appropriate authority” to modify an existing law as that appropriate authority considers necessary or expedient. This provision recognizes that some “appropriate authority” or organs of government may need to modify an existing law to suit their exigencies. By section 315(4) of the said Constitution, “appropriate authority” means the President in relation to any federal laws, the Governor, in relation to any state laws deemed to be a law made by the State House of Assembly or any person appointed by any law to revise or re write the federal or state laws. Subsection (C) of that section defines modification to include “addition, alteration, or repeal”. See also Chisco Ltd v P.M.A. Ltd (2016) 3 NWLR (pt 1499) 249 at 274.

 

Therefore, as iterated earlier, exhibit C 32 is silent on the template to be used in payment of salaries. What exhibit C 27 did was to modify the provisions of exhibit C 32. The rule that will govern what salaries the Claimant is entitled to receive, is that which was in force when her cause of action arose. From the statement of facts, the Claimant averred that when she and other officers in the Ministry of Justice were recalled on 9/2/2016 and paid salaries, she was not paid. At the time the Claimant’s cause of action arose, exhibit C 27 was the directive in force superseding the previous directives (as contained in Exhibits C 25 and C 30). For all intents and purposes, I find and hold that by virtue of Section 315 (2) of the 1999 Constitution, exhibit C 27 or any other current directive is applicable for the payment of the remunerations of law officers in Imo state.

Besides, it must be noted that the Association of Senior Civil Servants of Nigeria (which the Claimant admitted to be a member of), filed a suit in 2015 seeking for similar reliefs as these. I am aware that after the representatives and members of the said Association met with the representatives of the Government in a bid to resolve some of the disputes that arose then, the Association subsequently withdrew the suit from this Court, opting to be guided by their subsequent terms of settlement reached. The case was struck out by this Court on the 7/3/2016 per Anuwe, J. This Claimant had tendered and relied on both the joint communique of 9/2/2016 and CTC of the record of proceedings as Exhibits C 17 and C 34 respectively. A cursory look at the said Exhibit C 17 indicates that the parties agreed in the meantime, to be paid salaries in accordance with whatever funds were available to the State Government at a certain percentage. Suffice it to state that the Claimant’s suit is further watered down as a result of this evidence in that it suggests that her association is to date, still in talks with the representatives of the State Government on what sources are available for the settlement of all State owed salaries particularly to Senior Civil Servants of the State.

With all these said, this Court hereby declares that the Law Officers’ Law No. 5 of 1998 is in fact a valid law, although subject to the provisions of Section 315 (2) CFRN 1999.

Now for the avoidance of any doubts, this Court hereby grants and awards the following only:

  1. The Claimant’s declarative and or executory reliefs numbers 1, 2, 3, 4, 5,7, 8, 9, 10, 11, 12, 13, and 21 of her complaint are hereby granted as sought.
  2. The Claimant’s relief number 6 is refused only because it is up to the 4th Defendant to ratify her continuous acting capacity as Administrator – General of the State in accordance with the Civil Service Regulations of Imo State.
  3. The Claimant is hereby ordered to be reinstated with immediate effect to GL 17 (9) and all her salaries and allowances which were withheld for 46 months from May, 2015 to March, 2019 on her grade level as Director for Estates and Trusts, be accordingly paid to her within 30 days of this judgment which shall in default, attract 10% interest per annum until fully liquidated.
  4. Reliefs numbers 14, 15, 16, 17, 19 and 20 are hereby denied and refused.
  5. Relief number 22 is hereby denied save for the grant of a perpetual order restraining the Defendants from victimizing the Claimant in any form, including undue withholding of her salary or promotion and from premature retirement or dismissal from service because of her institution and maintenance of this cause.
  6. A declaration that the Law Officers’ (Harmonization of Salaries of Magistrates) Law No. 5 of 1998 being an existing law, neither expressly contains nor provides any template for the payment of salaries to Law Officers and Magistrates and same is accordingly subject to the provisions of Section 315 (2) CFRN 1999.
  7. No other costs or pre and post judgment interests on the adjudged judgment sum in this cause are awarded save for the express orders summarized by this here Court above.

The Claimant’s suit succeeds in part only.

Delivered in Owerri this 11th April, 2019.

Hon. Justice I.S. Galadima

Judge.

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