IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 22ND MARCH 2019
SUIT NO. NICN/OW/07/2017
BETWEEN:
MRS GLORIA E. EGWUAGU
CLAIMANT
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 CLAIMANT.
COUNSEL TO THE DEFENDANTS ABSENT.
JUDGMENT
INTRODUCTION
Originating Summons dated and filed 8th February 2017 commenced this suit. Later, Statement of Facts dated 20th October 2017 was filed the same day. Paragraph 18 of this Statement of Facts has these reliefs:
DECLARATION that the claimant is still in the service of Imo State Government and is entitled to her salaries, emoluments, benefits and privileges.
DECLARATION that the directive or instruction from the 1st Defendant to the 3rd Defendant on the purported suspension of the claimant is unconstitutional, null and void, and of no effect.
DECLARATION that the purported suspension of the Claimant from the Imo State Civil Service (vide letters dated 16/11/2016 Reference Numbers MJI/P/1184/1/187 is null and void, and of no effect.
AN ORDER setting aside the purported suspension of the Claimant from Imo State Civil Service.
AN ORDER restoring the Claimant to her position as Deputy Director in the Imo State Civil Service.
AN ORDER that the Claimant be paid her salaries, emoluments and allowances from November, 2016.
TEN PERCENT (10%) interest on the judgment sum until it is finally liquidated.
INJUNCTION RESTRAINING the Defendants, their servants and or agents from interfering, in whatsoever manner, with the Claimant’s employment in the Imo State Civil Service.
AN ORDER restraining the Defendants, their servants and or agents from taking further steps or acting in any way detrimental to the Claimant’s rights and interest.
Against the above, the defendants filed a joint Statement of Defence dated 16th January 2018 but filed 7th March 2018. The claimant replied this by filing Reply to the Statement of Defence dated 13th March 2018 on 14th March 2018. The matter hitherto was before my learned colleague: Hon. Justice O.Y. Anuwe, who was the Presiding Judge of Owerri Division before my transfer to the Division. The matter came up before me for the first time on 17th October 2017. The matter was on this date adjourned for mention on 20th November 2017. The Court did not sit on this date, but rather on the 5th December 2017. On 5th December 2017 the defendants’ counsel was not in Court and the matter was therefore adjourned to 11th January 2018 for further mention. The matter came up on 11th January 2018 as adjourned, but yet still, the defendants’ counsel was not in Court; as a result, the matter was this time around adjourned to 5th February 2018 for hearing. On the 5th February 2018, the Court did not sit and the matter came up next on 8th March 2018 for hearing. On this date, the case was opened with the claimant, who testified as CW1. But before going into the trial proceedings, let me first state the cases made by the parties in their pleadings.
CASES MADE BY THE PARTIES’ IN THEIR PLEADINGS
The claimant pleaded that the 3rd defendant employed her on 10th September 1996 and that, due to exemplary performances evidenced in letters of commendation, she was confirmed on 28th May, 1999 and equally earned promotions up to the rank of Deputy Director on 24th January 2014. The claimant pleaded further that, she earned N431,000,000.00 per month but was short-paid N202,540.00 leaving a balance of N228,460.00. She pleaded that the Constitution, the Public Service Rules and other laws govern her conditions of service. The claimant also pleaded that in the month of November 2016 the 1st defendant directed the 2nd defendant to suspend her indefinitely without pay and that, by a letter dated 16th November 2016 the 2nd defendant carried out this directive which was followed by a query dated 28th September 2016, which she replied on 6th October 2016. The claimant pleaded that, the defendants did not follow the laid down procedures in Chapter 4 of the Imo State Public Service Rules in the disciplinary measures taken against her. Consequent upon this, the claimant claimed the reliefs earlier itemized above.
On the other hand, the defendants pleaded that the claimant stopped discharging her duties in November 2016 and was queried, suspended and thereafter retired on 27th March 2017. The defendants pleaded too, that all laid down procedures in the Civil Service Rules of Imo State were obeyed in doing this; and that the claimant was heard before the suspension. The defendants also pleaded that any civil servant could be retired compulsorily before attaining the retirement age. The defendants denied that the claimant was short-paid and that, it shall rely on the Revised Salary Scale of Civil Servants in Imo State. The defendants also pleaded that the interlocutory injunction granted by this Court against the suspension of the claimant was granted after the suspension and retirement had taken place. The defendants pleaded finally, that the claimant is not entitled to the reliefs claimed.
In reaction, the claimant filed the Reply to the Statement of Defence and denied that she was retired on 27th March 2017 and said up till date, she has not received any notice of the purported retirement. The claimant pleaded too, that she was not guilty of any misconduct and that the purported retirement did not follow the due process of the Civil Service Rules, and that, more importantly, the purported retirement on 27th March 2017 was carried out during the pendency of this suit while the claimant had not stopped discharging her duties as she had been appearing in court for the defendants with evidence to prove this.
The above constitute the summaries of the cases made out in the pleadings of the parties. It is on the bases of these that the case was fought and on which evidence was led at trial and final written addresses canvassed. To the trial proceedings, I now go.
TRIAL AND ADOPTION PROCEEDINGS
Trial commenced on the 8th March 2018 with the claimant who testified as CW1. CW1 took oath on the Holy Bible and complied with other preliminaries. Thereafter, CW1 adopted her written deposition of 20th October 2017. CW1 tendered 9 documents without objection, which were accordingly admitted as Exhibits CWA-CWK. Another document was admitted after ruling on objection as Exhibit CWL. Thereafter, the case was adjourned to 25th, 26th April 2018 and 2nd May 2018 for further hearing. However, further trial could not go on as adjourned on 25th April 2018 due to the Law Week of the Owerri Branch of the NBA, which fell on that week. It was as a result adjourned 2nd and 21st May 2019 for continuation of trial. It did not go on both the 2nd and 21st May 2018 as adjourned. It later came up on 28th May 2018. On this date evidence-in-chief of CW1 continued. On this date, CW1 adopted her additional written deposition made 14th March 2018. On this date too, five documents were tendered and admitted without objection and marked as Exhibits CWM-CWQ accordingly. Thereafter, the trial was adjourned to 12th and 18th June 2018 for cross-examination of CW1 and continuation of trial. On 12th June the matter came up as adjourned and CW was cross-examined. Thereafter, the claimant closed her case. The case was subsequently adjourned to 8th and 10th October 2018 for defence.
The Court did not sit on 8th October 2018 and the matter came up next on 28th November 2018. On this date, the matter was further adjourned to 6th December 2018 on the application of the learned counsel to the defendant on ground of ill-health. On the 6th December 2018 the Court did not sit and the case was adjourned to 10th December 2018. On 10th December 2018, the matter could not proceed as adjourned due to the absence of the learned counsel to the defence. It was as a result adjourned to 12th December 2018. It came up as adjourned. On this date the learned counsel to the defendants moved the application for additional witness and this was granted as prayed without objection. Thereafter, the learned counsel to the defence opened the defence with DW1. DW1 was sworn on the Holy Bible and thereafter adopted the written deposition made 11th December 2018 without tendering any exhibit and ended his evidence-in-chief on this note. The matter proceeded to cross-examination immediately. The cross-examination was completed the same day without re-examination and DW1 was discharged. Thereafter, the application of the learned counsel to the defendants for adjournment to field another witness was refused and the defence closed. The case was thereafter adjourned to 8th February 2019 for adoption of the final written addresses. The Court did not sit on the 8th February 2019 and the matter came up next on 28th February 2019.
On the said 28th February 2019, the learned counsel to the defendants moved the defendants’ application for extension of time to file final written address and to deem same, already filed, as properly filed and served. This application was granted without objection. Thereafter, the learned counsel to the claimants: L.A. NJEMANZE adopted the claimant’s Final Written Address dated 21st January 2019 and filed on 25th January 2019. The learned counsel to the claimant also adopted the Reply on Points of Law dated 20th February 2019 and filed 21st February 2019. The learned counsel adumbrated by submitting that there must be strict compliance with the Civil Service Rules. The learned counsel referred to Rules 04102 & 04103 and cited Iderima v. Rivers State CSC (2005) 16 NWLR (Pt. 951) 378 at 401. The learned counsel finally urged the Court to grant the reliefs of the claimant.
Thereafter, the learned counsel to the defendants: A.C. OKONKWO adopted the final written address of the defendants dated 7th February 2019 and filed 8th February 2019. The learned counsel adumbrated that they only considered two issues relevant for the consideration of the Court and urged the Court to resolve these issues in favour of the defence. The learned counsel finally urged the Court to dismiss the suit. The case was thereafter fixed for judgment on 15th March 2019. But the Court could not sit on this date due to my attendance at a seminar at the National Judicial Institute [NJI], Abuja fixed for 11th-15th March 2019.
ADDRESSES OF COUNSEL TO THE PARTIES
A. Defendant’s Final Written Address
K.I. UDUMA franked the Final Written Address of the Claimant and formulated five issues for the determination of the case:
Whether the 1st Defendant has the statutory power to direct the 3rd Defendant to suspend the Claimant indefinitely without salaries. [sic]
Whether the Claimant who is a Civil Servant in the established and pensionable cadre can be found guilty of negligence of duty without being heard. [sic]
Whether the Claimant was retired from the Imo State Service. [sic]
Whether the Defendants can take any disciplinary action against the Claimant during the pendency of this suit and despite the subsistence of the injunctive order by this Honourable Court. [sic]
Whether the Defendants traversed the allegations contained in the Statement of Facts. [sic]
In arguing issue 1, the learned counsel to the claimant submitted that, it is not in dispute that, the claimant, as a Deputy Director, was suspended by Exhibit CWJ. The learned counsel argued that, the 3rd defendant, being a creation of the 1999 Constitution, its powers as are as spelt out in Part II of the Schedule to the 1999 Constitution. The learned counsel submitted that, by virtue of section 202 of the 1999 Constitution, the 3rd defendant is an independent and neutral body. The learned counsel argued that, the use of the word ‘shall’ in section 202 of the 1999 Constitution connotes compulsion. The learned counsel cited Monye v. P.T.F.T.M (2002) 15 NWLR (Pt. 789) 209. The learned counsel submitted that, in virtue of this, the 1st defendant lacks the vires to direct or control the 3rd defendant. The learned counsel cited Hart v. Military Governor of Rivers State (1976) 11 SC 211 and Nawa v. AG Cross River State (2007) LPELR-8294 (CA). The learned counsel submitted that, the approval of the 3rd defendant on which basis Exhibit CWJ [letter of suspension] was issued by the 2nd defendant, not having being tendered, means no such approval exits, and if it exits, then, it was deliberately withheld and thus, raised the legal presumption in section 167(d) of the Evidence Act 2011.
The learned counsel argued that, it was wrong for the 3rd defendant to have acted on the directive of the 1st defendant in suspending the claimant; and that, the 1st defendant’s directive is ultra vires section 202 of the 1999 Constitution and cited Hart v. Military Governor of Rivers State (1976) 11 SC 211 [supra]. The learned counsel submitted that, when a statute provides the manner of exercising a power, such prescription must be followed to the letter. On this, the learned counsel cited Galaudu v. Kamba (2004) 15 NWLR (Pt. 895) 31. Thus ended arguments on issue 1 and the learned counsel moved to issue 2.
On issue 2, the learned counsel argued that, rules of natural justice and fair hearing dictate that a person must be afforded the opportunity of being heard before a decision affecting him could be taken. The learned counsel cited Yusuf v. UBN (1996) 6 NWLR (Pt. 457) and UBA v. Oranuba (2014) 2 NWLR (Pt. 1390) 1, 22-23. The learned counsel argued that, the claimant pleaded in paragraphs 10 and 12 of the Statement of Facts and led uncontroverted evidence thereof that, by the query dated 28/9/2016, the defendants did not follow procedure before suspending her, as she was not heard before she was found guilty of negligence of duty and suspended without salaries. The learned counsel argued that, the defendants who did not controvert paragraphs 10 and 12 of the Statement of Facts but however said query was issued to the claimant and her answer was unsatisfactory, failed to plead the date the query was issued and the person that issued it. The learned counsel argued that, DW1 did not tender the alleged query and its reply and neither led evidence on the issuance and service of the query. The learned counsel argued that under cross-examination, DW1 displayed lack of knowledge of the matter in Court and did not know the person or body that issued the alleged query and was never a member of any panel that allegedly sat on the matter. The learned counsel argued that in virtue of this, DW1 is an unreliable witness and urged the Court to so hold.
The learned counsel submitted that, since the defendants failed to tender the alleged query and answer, it means no query was ever issued. The learned counsel cited section 136 of the Evidence Act. The learned counsel submitted further that, the implication of failing to produce these documents is that, the defendants withheld them because they are unfavourable to their case. The learned counsel cited Oparaji v. Ohanu (1999) 9 NWLR (Pt. 618) and Alabe v. Yaro (2002) FWLR (Pt. 115) 793. The learned counsel argued that, the defendants did not produce any other evidence that the claimant was heard before she was suspended and submitted that, this Court cannot therefore rely on the evidence DW1 in this regard. The learned counsel therefore urged the Court to hold that the claimant was not heard before she was suspended and that, the suspension was null and void. On this, the learned counsel cited FRN v. Akabueze (2017) NWLR (Pt. 1223) 547; Odigwe v. JSC Delta State (2011) 10 NWLR (Pt. 1255 254 and Mpama v. FBN (2013) 5 NWLR (Pt. 1346) 176. There ended arguments on issue 2 and the learned counsel moved to issues 3, 4 & 5, which were argued together.
Arguing issues 3, 4, & 5 together, the learned counsel started by saying that there was the unchallenged evidence that the Imo State Public Service Rules regulate the employment of the claimant and that these rules were made pursuant to section 197 of the 1999 Constitution and section 4 of the Pensions Act. The learned counsel submitted that by this fact, the rules have constitutional force; and clothed the employment with statutory flavours. The learned counsel cited Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) 599 and a host of other authorities on this point. The learned counsel argued that, by the pleadings and evidence led, the claimant is entitled to continue in service until she reaches the age of 60 years or until she attains 35 years of service. The learned counsel cited section 4 of the Pension Act [supra]. The learned counsel submitted that, the claimant couldn’t therefore be retired prematurely without following the laid down procedure. On this, the learned counsel cited Nawa v. AG Cross Rivers State [supra].
The learned counsel also argued that, the defendants averred in their Statement of Defence that the claimant was retired on 27th March 2017 or thereabout by the 3rd defendant and that, the claimant denied this in paragraph 3 of her reply and stated that, she had not been served with any letter of retirement nor appeared before any disciplinary body and did not commit any misconduct nor was she incompetent. The learned counsel submitted that, the burden is therefore on the defendants to prove the alleged retirement, appearance before a disciplinary panel and the misconduct alleged by adducing the necessary documentary evidence; and that, the defendants failed in this regard. The learned counsel submitted that, the implication is that, she could not be said to have retired.
The learned counsel argued that, this suit was filed on 8th February 2017 and the purported retirement took place on 27th March 2017, during the pendency of this suit, which the defendants and the learned Attorney-General were said to be fully aware of by taking part in the proceedings. The learned counsel urged the Court to take note of its records. The learned counsel cited Uzodima v. Izunaso (2011) LPELR-2011 (CA). The learned counsel submitted that, arising from the fact of the pendency of this suit to the knowledge of the defendants, the purported retirement of the claimant within the life of this suit is, therefore null and void. 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 (1986) 1 NWLR (Pt. 18) 621 at 636, A-D; and FATB v. Ezegbu (1993) 6 NWLR (Pt. 297) 1. The learned counsel argued further that the defendants are by their conducts estopped from saying the claimant had been retired since the claimant pleaded in paragraph 3 of her reply and led evidence to show that she is still in service performing her duties.
The learned counsel argued further that, there is even no Statement of Defence before the Court because, by the rules of this Court, the defendants were expected to file their Statement of Defence 14 days after the claimant served them with the Statement of Facts. The learned counsel argued that, the defendants were duly served with the Statement of Facts filed on 20th October 2017 on the 23rd October 2017 while the defendants filed their Statement of Defence on 7th March 2018, which was clearly out of time without application or leave granted to regularise same. The learned counsel argued that, even if the Statement of Defence is deemed as properly filed, it did not traverse the material facts in issue. The learned counsel argued that, any allegation of fact not specifically denied must be taken as established; and cited Taiwo v. Adegboro [supra] and Lewis and Peat (N.R.I.) Ltd v. Akhimien (1976) 1 ALL NLR (Pt. 1) 460; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598 at 620; and other authorities. The learned counsel submitted that, paragraphs 3 and 5 of the said Statement of Defence are not sufficient traverse of paragraphs 10, 12, and 13 of the Statement of Facts. The learned counsel submitted that thus, the defendants therefore admitted the allegations contained therein.
At this juncture, the learned counsel to the claimant brought his address to an end by urging the Court to hold that the claimant had proved her case and therefore entitled to the reliefs sought. I shall therefore move to the written address of the defendants. But before doing this, let me observe that the defendants are, by law, only entitled to reply on points of law being that the claimant filed her address at the default of the defendants before the defendants belatedly did – see Order 45, Rule 13 of the NICN Rules 2017. But since addresses are, in essence, assistance to courts, and are not binding on courts, I think it would not be out of place to consider the final written address filed by the defendants, instead of the reply on points of law that ought to have been filed in the interest of unraveling the true position of law – see Akono v. The Nigerian Army (2000) LPELR-6810 (CA) 12, paras. A-B. I am fortified further by of Order 1, Rule 9(3) of the NICN Rules, and more particularly more so, when the claimant’s counsel did not object to the address.
B. Defendants’ Final Written Address
C.O.C. EMEKA-IZIMA franked the defendants’ Final Written Address. The learned counsel distilled two issues, to wit:
Whether the 3rd Defendant has the right to discipline the Claimant who was an employee of the Defendants?
Whether the Claimant has proved her case as to be entitled to the reliefs sought?
In reviewing the facts of the case, the learned counsel to the defendants stated that while the claimant filed her pleadings on 20th October 2017, the defendants filed theirs on 8th March 2018. The learned counsel stated further that following the refusal of the claimant to allow amicable settlement, the claimant hurriedly opened her case and the matter proceeded to full trial. The learned counsel stated that the trial took place from 8th March 2018 to 12th December 2018. The learned counsel said, the defendants were however compelled and forced to open their defence on 12/12/18, and that the defence was equally forcibly closed the same day notwithstanding that the defence still had two more witnesses who were willing to testify. The learned counsel said the Court further ordered parties to file final written addresses and that; this address, is in obedience to the order.
Arguing issue 1, the learned counsel to the defendants cited the provisions of section 5(2) of the 1999 Constitution, and submitted that by virtue of these provisions, the 1st defendant had the power to personally discipline the claimant just as he did in the instant case; and that, it could also do this through the relevant commissioner or any other officer in the Government of the State. The learned counsel submitted that, in this case, Mrs. A.N. Eluwa and J.N.A. Amasiatu carried out the due process of disciplining the claimant on behalf of the defendants by issuing the claimant with query and suspension letter. The learned counsel submitted that both the query and answer are contained in the record of this Court. The learned counsel submitted that the response of the claimant to the query 8 days after it was issued without cogent and verifiable reason for failure to respond within the time given, made the response void under the Civil Service Rules. The learned counsel opined that in the absence of response within the 48 hours stipulated, the 3rd defendant was right to issue the claimant with the suspension letter on 16th November 2016 and also the other disciplinary measures taken subsequently.
The learned counsel argued that, notwithstanding the previous good record of the claimant, she is liable to punishment the moment she became irresponsible in her work. On this, the learned counsel cited Governor of Kwara State v. Dada (2011) 14 NWLR (Pt. 1267) 384, 416, paras. G-H. There ended arguments on issue 1 and the learned counsel moved to issue 2.
On issue 2, the learned counsel was of the view that none of the several documents tendered by the claimant made her entitled to the relief claimed since they were merely dumped on the Court without demonstrating how they related to the case of the claimant. The learned counsel opined that, the Court could not embark on a voyage of discovery to do this. The learned counsel cited Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 538, 580-581, paras. F-A; Terab v. Lwan (1992) 3 NWLR (Pt. 231) and A.N.P.P. v. Usman (2008) 12 NWLR (Pt. 1100) 1. The learned counsel stated that DW1 gave evidence of the irresponsible work attitude of the claimant for over a year before the 1st-3rd defendants issued her query on 28th November 2016, which the claimant failed to reply within the 48 hours given. The learned counsel argued that, as there was no response, the defendants decided to suspend the claimant. The learned counsel argued that, when the claimant got wind that she might be disciplined for failure to respond to the query, she replied it after 8 days without any explanation for the lapse of time. The learned counsel submitted that the defendants, having given the claimant the opportunity to be heard, which she ignored, suspended the claimant.
The learned counsel submitted further that, the defendants could only be obliged to set up a disciplinary committee if the claimant had responded to the query within the stipulated time. The learned counsel argued that, since there was no valid response received, there was nothing to investigate, as all the allegations were deemed admitted. The learned counsel submitted that the disciplinary measures taken, were therefore, validly taken. The learned counsel thereafter urged the Court to resolve this issue in favour of the defence and against the claimant. The learned counsel finally urged the Court to dismiss the suit. There ended arguments in the final written address of the defendants. I shall move to the reply on points of law.
C. Reply on Points of Law by the Claimant
ONYINYECHI ODOEMENA franked the Reply on Points of Law. The learned counsel replied to the new issues raised by the learned counsel to the defendants in paragraphs 1.00-1.07 and 2.00-207 of the defendants’ final written address that the Court denied the defendants adequate time to prosecute their defence while it indulged the claimant with enough time and that claimant refused to allow amicable settlement and the Court allowed her to open her case hurriedly. The learned counsel argued that it was a misrepresentation of what transpired in Court and these accusations were not based on the pleadings. The learned counsel cited Ojukwu v. Yar’Adua (2009) ALL FWLR (Pt. 482) 1065 at 1115, paras. D-E. The learned counsel argued that, the claimant did not refuse settlement as none was initiated on the 8th March 2018 when the learned silk informed the Court and applied that the case be opened as this would not stop negotiation. The learned counsel said the record of the Court is there. The learned counsel referred to the records of 28/11/18, 6/12/18. 10/12/18 an 12/12/18 which showed that the Court had been fair to the defence. The learned counsel argued further that the Statement of Facts and written depositions were filed 20th October 2017 and not 22nd October 2017 as claimed by the defence. The learned counsel argued that the defendants were served on 23rd October 2017 and filed their Statement of Defence on 7th March 2018. The learned counsel submitted that counsel’s address does not constitute evidence; and that, since these submissions were not part of the pleadings they must not be used in the resolution of the issues in the suit. The learned counsel cited Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 308, para. H and Order 45, Rule 2 of the NICN Rules. On the basis of the above, the Court is urged to discountenance the extraneous matters. The learned counsel also cited Ehirim v. I.S.I.E.C. (2013) ALL FWLR (Pt. 658) 850 at 861.
The learned counsel replied to the issue of section 5(2)(a) of the 1999 Constitution and said it is not ambiguous and must be given its ordinary meaning and does not import the interpretation the defendants’ counsel sought to put on it, as it does not have anything to do with civil servants. The learned counsel cited AG Ondo State v. AG Ekiti State (2001) 91 LRCN 3065 at 3087, para. J, 3087, paras. H-I. The learned counsel submitted that the 1st defendant lacked the vires to discipline the claimant without recourse to the Public Service Rules and without giving the claimant hearing. The learned counsel conceded that, the 3rd defendant is empowered to discipline civil servants and that the disciplinary procedures are spelt out in Chapter 4 of the Imo State Public Service Rules and that, the Civil Service Rules, which is now the Public Service Rules, govern the contract between the parties. The learned counsel referred to Amaonwu v. Ahaotu (1998) 9 NWLR (Pt. 566) 454, ratio 6. Relying on Order 45, Rule 2 of the NICN Rules, the learned counsel urged the Court to discountenance paragraphs 4.02, 4.03, and 4.06 because they are extraneous, as the defendants are not allowed to go beyond what has been pleaded. The learned counsel cited Ehirim v. I.S.I.E.C. [supra]. The learned counsel submitted that counsel is not permitted to present a different case in his address. The learned counsel relied on Order 45, Rule 2 [supra].
The learned counsel replied to paragraphs 4.07 and 4.09 and opined that, the case of Governor of Kwara State & 2 Ors. v. Dada (2011) is not applicable to the instant case, as the facts of the two cases are different. The learned counsel submitted that, in that case, the Court declined jurisdiction because its jurisdiction was ousted by section 3 of Decree 17 while there is no provision in the 1999 Constitution that ousts this Court’s jurisdiction. The learned counsel argued that, whereas sections 197(1) and 202 of the 1999 Constitution are relevant in the instant case and, the defendants did not act in accordance with section 202 of the 1999 Constitution and Rule 04405 of the Public Service Rules to suspend the claimant indefinitely without salaries. The learned counsel also argued that, it is in respect of levels 01-06 that disciplinary powers are delegated to permanent secretaries and heads of extra-ministerial departments.
On the issue whether the claimant had proved her case, the learned counsel replied that Order 30, Rule 1(1) & (2) of the NICN Rules applied and that, the case of Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 538 is not relevant as the claimant explained the purports of the documents tendered. The learned counsel urged the Court to discountenance paragraphs 5.04, 5.05 and 5.06 as they were not pleaded and therefore went to no issue. On this, the learned counsel also cited Order 45, Rule 2 of the NICN Rules. The learned counsel opined with regard to paragraphs 5.03-5.06 that the facts therein are exact opposite of the pleadings of the defendants. The learned counsel replied on the issue of oral evidence of the defendants that the claimant had been retired by saying that, the same defendants had been minuting works to the claimant and which works the claimant had been carrying out till date and that, exhibits in proof of these facts are before the Court. The learned counsel cited BFI Group Corporation v. Bureau of Public Enterprises supra [but I cannot find where it was previously cited in this address]. The learned counsel submitted that, the claimant proved her case and that, her evidence was neither attacked nor successfully challenged and the Court could therefore safely rely on it. The learned counsel cited Gov., Zamfara State v. Gyalange (2013) ALL FWLR (Pt. 658) 821 at 841, paras. C-E.
Thus ended the Reply on Points of law. My next duty is to give the decision of the Court by applying the law to the evidence before the Court. I wish to state that I have given all relevant processes the careful consideration required by law. I have also carefully reviewed the evidence before the Court and the important authorities cited. References shall be made in the course of giving reasons for my decision to the relevant parts of the pleadings and evidence. I proceed to give the Court’s decision.
COURT’S DECISION
A. Decision on Preliminary Issues
Before going into the decision of the Court proper, let me clear some preliminary points. The first in line is the issue of filing the Statement of Defence out of time without obtaining the leave of the Court. This issue was raised for the first time at the address stage by the learned counsel to the claimant. I have checked and observed that it was actually filed out of time, but while the filing fee was paid, the default fee was not paid. I also found that no application for extension of time to regularize it was filed and neither was any oral application made thus, giving the impression that the Statement of Defence was regularly filed. By Order 57, Rule 5(4) of the NICN Rules 2017, when a private legal practitioner handles a case for any government department s/he shall be liable to pay all filing fees and penalties. So, the learned counsel to the defendants herein, is liable to pay the penalty incurred in respect of filing the Statement of Defence out of time. And as pointed out earlier, this was not paid. By the proviso to Rule 5(5) of Order 57 [supra], any process filed without the payment of default fee shall be incompetent and cannot be used for the purpose for which it was filed, until the appropriate default fee is paid. Rule 5(7) of Order 57 [supra] additionally provides that, where such default to pay the penalty is due to the fault of counsel to the party, the Court shall order the penalty to be paid personally by the counsel. The same Order 57, Rule 6(1) makes it the duty of counsel to the defaulting party to calculate and pay the accurate penalty.
The Government of Imo State firmed out this suit to the learned counsel to the defendants. By this fact, the learned counsel to the defendants is legally burdened to pay filing fees and any penalty for default to file process on time and becomes doubly bound by Order 57, Rule 5(7) [supra] because; the default to pay the fine here is his, personally. The learned counsel to the claimant: C.O.C. EMEKA-IZIMA is therefore personally liable to pay the default fee in question; and I so hold. I found that the Statement of Facts dated 20th October 2017, which is the extant one herein, was served on the defendants via Ministry of Justice on 23rd October 2017 [p. 128 of file] and the Statement of Defence herein was filed 7th March 2018. From 23rd October 2017 to 7th March 2018 is a period of 135 days, minus the 14 days grace [Order 30, Rule 2(2) of the NINCN Rules 2017] the defendants have within which to file their Statement of Defence: = 121 days of default.
Now, what is the appropriate order to make in the circumstance? It has been found that the fault in paying the fine is that of the learned counsel to the defendants personally and not that of the defendants themselves. The suit had been firmed out. The defendants would therefore assume that all necessary fees to file processes had been paid by their counsel to whom the brief was firmed out. The law is trite that fault of counsel should not be visited on the litigant, unless there is proof of connivance of the litigant, which is not the case here. No fault has been traced to the defendants herein, so, the fault of their counsel to pay the default fee herein cannot be visited on them – see Bank of the North Ltd v. Adegoke (2006) LPELR-7599 (CA) 26, C-E. It is similarly the duty of the Registry to check if default is incurred and if, access the correct amount and ensure payment before accepting a process for filing, which duties were chided in the instant case: maybe because no motion for extension of time accompanied the Statement of Defence. It is therefore equally and partly the fault of the Registry not to have detected the liability to pay fines for filing out of time and also, for accepting such irregular process for filing. The law is likewise that the fault of the Registry cannot be visited on an innocent litigant – see Ede & Anor. v. Mba & Ors. (2011) LPELR-8234 (SC) 33-35, F-A. And to hold at this stage that the Statement of Defence is incompetent, in accordance with the dictate of the rules of this Court, is to deny the defendants their defence for a sin not committed by them.
This would be tantamount to denial of fair hearing, which a court abhors. Where a court finds that it would be totally unjust to deny access to justice, it would bend backward to accommodate the delinquent party where this is still possible and would not entail injustice to the other side. In fact, the prayer of the learned counsel to the claimant that the Statement of Defence be discountenanced for failure to pay the default fee is a clear case of taking undue advantage of a situation that amounts to ambush. I would have overruled the learned counsel to the claimant straight away, who stood by while the Statement of Defence was filed out of time and replied to same as if it was regularly filed and now turned round, after taken further steps, to raise objection against what he has treated on the merit by filing a Reply, but I will not do this, because, the Statement of Defence was actually filed irregularly and the Court ought not to encourage disobedience to the Court’s rules, especially when it comes to payment of fines to government. And I cannot hold that the Statement of Defence is incompetent because of the stage at which this issue came up: the final address stage, meaning, if I hold that the Statement of Defence is incompetent, the case would be decided as if the defendants never filed one, thus shutting the defendants out of their defence. I therefore buy the guidance provided by the Supreme Court in a situation like this:
“This court in the case of UNITED BANK FOR AFRICA LTD VS. DIKE NWORA…held that a Statement of Defence filed out of time and in contravention of the rules of court was not a void document and remains ‘a valid document until set aside.’ FATAYI WILLIAMS JSC (as he then was) stated in that case: -‘xxxxxx if a defence has been put in, though irregularly, the court will not disregard it, but will see whether it set up grounds of defence which, if proved, will be material and if so, will deal with the case in such manner that justice can be done.” [See Ukiri v. Geco-Prakla (Nig.) Ltd (2010)LPELR-3341 (SC) 16, B-E]
Fortified by this authority, I am of the firm view that I am on course to take cognisance of the Statement of Defence in issue, even though, filed out of time without obtaining the leave this Court. That is what the justice of the circumstance of this case demands. This is more so, when it is still possible to order the learned counsel to the defendants to pay the default fee in issue – see Ikpeogu v. Ikpeogu (2016) LPELR-41057 (CA) 22, C-F. I therefore take cognisance of the Statement of Defence of the defendants in this case; and hereby order the learned counsel to the defendants: C.O.C. EMEKA-IZIMA, to, in accordance with Order 57, Rule 5(4), (6), & (7) and Rule 6(1) & (2) of the NICN Rules 2017, personally calculate and subsequently crosscheck with the Registry, and pay the fines/penalties for the 121-day default personally, and within 7 days after the delivery of this judgment, with photocopy of the evidence of payment kept in the case file. It is the professional duty of counsel to obey lawful orders of Court. Seeing this, I don’t entertain any doubt that the default fee would be paid as ordered. And if not, it would be on record against the learned counsel, even without invoking the provisions of Order 57, Rule 5(7). I think this meets the justice of the case.
I now move to the second preliminary issue. This is the issue that the case was hurriedly opened and the claimant afforded ample time to present her case while the defendants were not given enough time to present their case and were, at the same time, forced abruptly to close the case. Though, I observe that the learned counsel to the defendants did not make this part of his address proper but only as part of the review of the salient facts of the case before going into the address proper, but nevertheless, I think the innuendo is barely hidden and thus, demands legal resolution, more importantly, when the learned counsel to the claimant addressed this issue in the reply address of the claimant. It thus becomes a legal issue to be resolved.
First, let me state that this particular case was opened on 8th March 2018, and that it was opened with the consent of the learned counsel to the defendants. When the Court asked whether the learned counsel to the defendants: C.O.C. EMEKA-IZIMA was ready to proceed with the trial of the case on this date, he replied thus, “We are ready only that we would come back for cross-examination.” – see p. 10 of the record of proceedings of 8th March 2018 supra. And this is after the case was adjourned on 11th January 2018 to 5th February 2018 for hearing, on which date the Court did not sit and thus, the 8th March 2018 when the case was opened with the full consent of the learned counsel to the defendants, who personally franked the defendants’ final written address. From the above scenario, it is as clear as daylight that there is no basis at all, for the learned counsel to the defendants to state that this case was hurriedly opened. I move to the next aspect of the accusations.
Let me now take the issue that the claimant was allowed to take her time to present her case and tendered all the necessary documents, while the defendants were denied the same opportunity. This accusation against the Court is patently unfounded. On the 8th March 2018 when the case was opened, it is clear from the record of proceedings that 9 documents were tendered and admitted without objection, while the tenth one was admitted after a lengthy ruling on objection – see pp. 10-17 of the record of proceedings. Apart from this fact, on this very date, on p. 17 of the record of proceedings, it is clear that the case had to be adjourned midway when the PHCN electricity went off and the generator was not put on for long, such that, the courtroom became so dark and stuffy, that I had to be assisted by my clerk with torchlight [from handset]. It was on this basis that the trial was adjourned for continuation. The matter came up next on 2nd May 2018. On this date, it was adjourned after it was stood down on the application of the learned silk to the claimant for his witness, who did not eventually turn up. The next time the matter came up was on 28th May 2018. On this date, CW1 continued her testimony and tendered 5 more documents, and on the application of the learned counsel to the defence, the case was adjourned for cross-examination and continuation of trial – see p. 22 of record. On 12th June 2018, the matter came up for cross-examination as adjourned and after the cross-examination, it was adjourned for defence.
It came up next on 28th November 2018 and could not go on because the learned counsel to the defence wrote for adjournment and the Court granted the adjournment with a warning that if on the next date, the learned counsel to the defence would not come, he should delegate another counsel to hold his brief – [By this time the matter was being heard on fiat]. When the matter came up next on the 10th December 2018, the learned counsel to the defence did not turn up in Court neither did the defendants themselves, and no reason was offered. Nevertheless, the matter was reluctantly further adjourned after a ruling on the application of the learned counsel to the claimant for foreclosure – see pp. 25-27 of record. It should be noted that, by this time, the case was being heard on fiat as I had been transferred out the jurisdiction. The matter came up next on 12th December 2018. On this date, the learned counsel to the defendants moved application to substitute witness and for additional witness statement on oath, which was granted unopposed. The learned counsel to the defendants thereafter said he was ready to take the witness that was present in Court while at the appropriate time application would be made in respect of the absent witness.
Subsequently, this witness was taken as DW1, and did not tender any document but indicated that the documents he would have tendered were not with him but in the office of the learned Attorney-General of Imo State. DW1 was thereafter cross-examined. There was no re-examination hence, DW1 was discharged. At this point, the learned counsel to the defendants asked for adjournment to enable him field the other witness who would corroborate DW1 and perhaps tender documents they intended to tender, which were in the office of the learned Attorney-General. The learned counsel to the claimant objected this application, stating that another witness had been substituted for the one that was sick. The learned counsel referred the Court to paragraph 10 of the affidavit in support of the application of the defence; and submitted that, there was no longer a need for the sick witness to testify and therefore no need to adjourn the case. The learned counsel submitted that, the intention was to ensure that adjournment is secured against the previous order of the Court that, if the defendants could not go on at this date no further adjournment would be granted; and that, even if the adjournment were granted and they came back that the sick man was still not well, the scenario would continue indefinitely. The learned counsel to the defendants tersely replied that DW1 had testified that these documents, which the 2nd witness would come to tender, were in the custody of the learned Attorney-General.
Thereafter, I rendered my ruling on the application for adjournment at pp. 34-35 of record, and refused the adjournment, foreclosed the defendants and adjourned the case for adoption of final written addresses of parties. I just wish to add that, from the circumstance of the case, it was clear that the sole intent of the application was to frustrate the trial of the case, being aware that the matter was being heard on fiat, and no more. And no reasonable tribunal or court would have granted the application for adjournment in the circumstance. A look at the written deposition of Bruno Nwachukwu [p. 138-140 of file] and that of Zeph Iheanacho, [DW1] – p. 172-174 of file – substituted for Bruno Nwachukwu, shows that, both contain the same depositions verbatim, apart from the different names and designations of the deponents. Besides, paragraphs 8 and 10 of the affidavit in support of the application for substitution [p. 163-169 of file] made it abundantly clear that:
“8. That in order not to stall proceedings in this matter, the Defendants/Applicants have provided another witness who is equally very conversant with the facts of this case to testify in their defence pending the recovery of their original witness on record.
10. That the granting of this application will not prejudice the Claimants/Respondents as the facts in both statements on Oath are the same and no alteration is being made in the statement of Defence.” [Undeline supplied for emphasis]
From the foregoing, especially the underlined portions, it is clear as daylight that Mr. Bruno Nwachukwu had no further evidence to come back to Court to give, as he had been substituted by the DW1 who actually testified on 12/12/18. Adjournments are not granted as a matter of course. The mere fact that the witness of the claimant took days to testify is not a reason why the same length of time should be allotted to the witness of the defence who had completed his evidence and was cross-examined and discharged, apart from the fact that, it has been clearly shown why the witness of the claimant took these number of days to testify. If I may ask: why should one witness give evidence on one issue and fail to tender alleged documents in respect of this issue and another witness would still come back to give the same evidence and tender documents which ought to have been tendered on the same evidence? Why did the learned counsel to the defendants field DW1 when he knew that he did not have the documents to tender with him? The answer is that it was a ploy not to make progress in the case and ensure that proceedings were stalled at all cost under the pretext that progress was being made.
The plain fact borne out of the scenario was that the learned counsel for the defence was yet not ready to go on that date. Or how does one explain a situation where two witnesses would come to give exactly the same evidence but the first would fail to tender, the allegedly necessary documents, which were not mentioned nor frontloaded, while the second would now come back to tender these unspecified documents. This becomes more perplexing when no reasonable excuse was offered for the failure of the first witness to tender this unspecified documents. The argument that the other witness would have come to corroborate the first is also a ruse. From the depositions of Mr. Bruno Nwachukwu and DW1, it is clear that none of the two witnesses was an eyewitness or participant in the actions in issue. All that the witnesses were to do in Court was, essentially, to tender official documents. Thus, the issue of corroboration was totally unnecessary in a case to be totally fought on documents and interpretation of laws and not on resolution of intractable oral evidence. And the ploy becomes more exposed when it was not stated when the so-called second witness, who really had nothing new to testify on, and who is said to be sick and transferred to an hospital in Lagos, would become well to come to testify. So, the ploy was plainly to keep the case on indefinitely waiting for a purportedly sick witness on whom no medical certificate of sickness was tendered and that really had nothing to add to the evidence in the case!
I am not aware of any rule of law that permits this repetitious rigmarole. If the learned counsel to the defence failed to lead his witness to tender relevant documents: that is the end. He cannot eat his cake and have it. He cannot insist that he has a right to secure adjournment to continue to give the same evidence all over repeatedly. Besides, I cannot find the rationale for the learned counsel to the defendants to say that the defence was not given ample opportunity to prosecute their defence or to tender documents. No document was frontloaded with the pleadings of the defendants as required by the rules of this Court and the defendants only mentioned one document in the List of Documents, which was not frontloaded. The second on the list of documents was “any other document(s) pleaded or relevant to this suit.” Definitely by this, no further document, other than the one listed as No. 1, was thus listed. And Order 40, Rule 4 of the NICN Rules provides:
“Unless the Court for special reasons at or before trial, otherwise orders or directs, no document, plan, photograph or model shall be receivable in evidence at trial of an action unless it has been filed along with the pleadings of the parties under these Rules.”
As it has been shown in my ruling refusing the application for adjournment and also abovein, no reasonable explanation or special reason was offered for the Court to exercise its discretion favourably for the defence. More so, the excuse that the documents to be tendered were in the office of the Attorney-General was most untenable. I wonder how the learned counsel drafted the pleadings if he did not have access to these so-called documents before drafting them! As the Court held, the whole plot was to ensure that the case was not completed so that, it could start de novo. It is also clear that the learned counsel to the defence contributed to the prolongation of the testimony of the claimant, as he took adjournment to come back to cross-examine her while on the other hand, the learned counsel to the claimant cross-examined witness of the defence immediately he finished his examination in chief. It is therefore very strange that he would turn round to say that the Court deliberately prolonged the testimony of the claimant.
More so, it is clear that the claimant and her counsel were always present in Court since the case was opened, except on one occasion, but even at that, her counsel was present, while on 28th November 2018 and 10th December 2018 both the defendants, their witness and counsel were absent in Court to open their defence, and yet, the Court bent backward to grant them adjournments. And this was when the learned counsel to the defendants had become aware that the case was being heard on fiat. On granting adjournment to the claimant on the 2nd May 2018, in the circumstance, could I have refused adjournment for a witness, who would have completed her evidence long, but for the problem of the court [light went off without generator and courtroom became dark and hot] and who had come promptly the first time and had testified half-way. I think such witness deserved the benefit of doubt and the indulgence of the Court, more so, when his counsel was in court, unlike the case of the defence where the defendants, their witness and counsel were absent twice to open their defence, and without excuse the second time, yet the Court accommodated them. The learned counsel is not complaining on the indulgence granted him on these occasions. At no time did the claimant come to Court to testify and failed to tender relevant documents. Why should the defendants be so indulged to the detriment of the claimant, when it was clear that the adjournment was not sought bona fide? Why should a court grant adjournment for a party to start fishing out for evidence to prosecute its case? Because no document was stated in the two written depositions as being proposed for admission and none was frontloaded and none was mentioned as the reason for the application for adjournment: the so-called documents were at large.
The assertion that the learned counsel had two more witnesses to call and who were willing to testify is totally unfounded. Of the two witnesses listed on the List of Additional Witnesses filed 11/12/2018, Bruno Nwachukwu is the same sick witness originally listed as the only witness in the first List of Witness dated 16th January 2018 and filed along with the Statement of Defence. The additional witness added in the Additional List of Witness: Zeph Iheanacho, was the one who gave evidence as DW1. So, where does the issue of two additional witnesses come? And the assertion that the two witnesses were willing to come to Court to give evidence is patently wrong with respect to Bruno Nwachukwu, whom the learned counsel to the defendants had admitted was sick and sent to hospital in Lagos – see paragraphs 6-7 of the affidavit in support of the application for substitution filed on 11/12/18 by the defendants while the second had testified as DW1 and discharged. I wonder how a person, whose sickness became complicated and had to be transferred for more intensive care, from medical facilities in Imo State to Lagos State could be said to be willing to come and give evidence in Court. And it is on record that the learned counsel to the defendants did not indicate at any point to the Court when exactly this same witness would come to Court to testify. From the foregoing scenario, it is very clear that the intention was to truncate the trial. The learned counsel to the defendants therefore had no basis to obliquely raise allegations of bias against the Court for refusing to grant him adjournment to fulfill his design. I will not say more than that on this. Let me proceed to the real business.
B. Decision on the Substantive Case
The learned counsel to the claimant formulated five issues, which I consider relevant to the facts of the case but failed to cover adequately the issues thrown up by the facts of the case, apart from being very prolix, while the defendants’ counsel formulated two issues, which are concise, but issue 1 thereof, I considered not relevant to the facts of the case, as the claimant did not dispute the power of the 3rd defendant to discipline her. I therefore proceed to formulate the three issues that I believe the facts of this case throw up, to wit:
Whether the claimant had been retired from the service of Imo State?
Whether the defendants followed due process of the law in disciplining the claimant?
If the answers to issues 1 and 2 are in the negative, whether the claimant is entitled to the reliefs claimed?
I will take issues 1 and 2 together. Essentially, the arguments of the learned counsel to the claimant is that, the due process of law, as spelt out in sections 197 and 202 of the 1999 Constitution and Chapter 4 of the Imo State Public Service Rules, was not followed by the defendants in the disciplinary measures taken against the claimant and that, the claimant has never been retired from the civil service of Imo State. On the other hand, the learned counsel to the defendants opined that, the due process of law was observed in the disciplines meted out to the claimant and that; the claimant was duly retired from service. On issue 1, I have no hesitation agreeing with the learned counsel to the claimant that there is no proof that the claimant was ever retired from the service Imo State.
Now, the defendant pleaded in paragraph 5 of the Statement of Defence that, “the claimant was retired on the 27th day of March, 2017 or thereabout by the 3rd Defendant.” The claimant joined issue in her paragraph 3 of the Reply to Statement of Defence by categorically stating that she was not retired on that date or thereabout; and that, up till the date of filing the Reply, she had not been served with any letter or notice to that effect. She stated further that she had been performing her duties in office. In paragraph 3 of the claimant’s witness deposition adopted in Court on 28th May 2018, the claimant repeated exactly the averments contained in paragraph 3 of the Reply to Statement of Defence, now as evidence. Thus, there is evidence on record that the claimant had not been served letter of retirement and had not retired from service. In paragraph 4 of the written deposition of Zeph Iheanacho [DW1] adopted in this Court on 12th December 2018, DW1 repeated verbatim the averments contained in paragraph 5 of their Statement of Defence. It is clear from these that the issue of retirement having been raised fresh in the Statement of Defence and issue joined by its denial in the Reply to Statement of Defence, the defendants have the responsibility to proof its existence – see Rangaza v. Micro Plastic Company Limited (2013) LPELR-20303 (CA) 20, E-F, where the Court of Appeal held, “It is trite that he who asserts a fact, and which fact is not admitted by the other party, has the onus of proving that fact…”
In the said paragraph 4 of the written deposition of DW1, DW1 merely said, “that the claimant was retired on the 27th of March, 2017 or thereabout.” Evidence must be distinguished from pleadings. While it might be the law that documents need not be specifically pleaded before being tendered in Court, provided sufficient facts relating to such documents had been averred in the pleadings, it is undoubtedly the law that evidence must be led on the existence of a specific document, its contents and relevance to the case and the document tendered before it could be acted upon. The defendants had not led any evidence as to the existence of any letter of retirement not to talk of its being served on the claimant in the instant case. And to make matters worse, no document showing that the claimant had been retired was actually tendered at trial by DW1. None was equally frontloaded nor contained in the list of documents filed. It is also of great importance to note that, the defendants are not even sure of the exact date the claimant was purportedly retired otherwise, DW1 would not have testified that “the claimant was retired on the 27th of March, 2017 or thereabout.” [Underlining supplied for emphasis]
The phrase ‘or thereabout’ underlined above, is indicative of doubt and uncertainty imported into the reality of the retirement/the exact date of retirement. Here, the exact date of retirement is material and where no date is given or there is doubt about the date, as in this case, it is impossible to prove retirement –see Gisda CYF v. Barrat (2009) EWCA Civ 648 CA at https://www.xperthr.co.uk where it was held that “the effective date of termination of an employee who was dismissed for gross misconduct was the date which she opened and read the letter from her employer informing her of the dismissal.” I think this is also the law in Nigeria. More so, in an employment in which there is no dispute that it has statutory flavour. In WAEC v. Oshionebo (2006) LPELR-7739 (CA) 17, D-F, 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 by force of logic, the converse is also true: that is, letter of termination/retirement/dismissal also takes effect on the date of its receipt by the employee and not on the date the employer purportedly wrote it. Besides, as stated earlier on, the claimant has pleaded and given evidence that she was not served with any notice of retirement. This has not been controverted under cross-examination or in any way or shaken under cross-examination. Thus, the evidence of the claimant on this remained unassailed and is taken as the true position with regard to whether any notice of retirement was served on the claimant. So, even if any letter of retirement had been issued, it has not been served on the claimant, and not having been served on the claimant, the claimant remained in service and has not been retired – see Ibama v. SPDC Nigeria Limited (1998) LPELR-6377 (CA) 7, A-E, where it was held that failure to give the requisite three-month notice would amount to unlawful termination.
In like manner, failure to give notice of retirement would much more amount to unlawful termination. Hence, were it that the existence of and issuance of a letter of termination were proved, failure to serve it would have made the letter/termination still a nullity. But here, as it is, it is not even proved that there exists any letter of retirement in respect of the claimant or that the claimant had been retired or that a letter of retirement was issued, not to talk of being served on the claimant. The defendants failed woefully to plead and give evidence of the means by which the claimant was retired. Arising from the foregoing, I am of the very firm conviction that the claimant had not been retired from service: the claimant remained in service; and I so hold. I shall now move to the issue, whether procedure was followed in disciplining the claimant.
I think the issue here is a very narrow one. The parties are id idem that the employment has statutory flavour. The disagreement is on whether due process of the law was followed in suspending the claimant. First, let me state that I cannot understand the fuss made by the learned counsel to the claimant about the defendant not tendering the query in issue. The defendant, by saying that the query and its answer were before the Court, clearly meant the same query and answer tendered by CW1 [the claimant] as Exhibits CWF and CWG (1-4). Since the claimant has tendered these, I cannot find the need for the claimant’s learned counsel’s insistence that what the claimant had tendered, be re-tendered by the defendants. Having been tendered, the defendants’ counsel has the legal right to make comments on them. I cannot also find the basis for the submissions of the counsel to the defendants that the suspension meted out on the claimant was due to the claimant’s failure to reply the query issued her within 48 hrs.
Facts relating to this were not pleaded in the Statement of Defence and neither was evidence led in that regard. Thus, the ipse dixit of counsel in address cannot take the place of cogent evidence – see PDP & Anor. v. INEC & Ors. (2012) LPELR-8429 (CA) 31, A. Even if evidence were led on such unpleaded fact, it would have been a nullity. Besides, it amounts to a counsel making a defence at the address stage, different from the one pleaded by a party to the case, a classic case of inconsistency. Parties are bound by their pleadings. Hence, the brief of a counsel is limited to the party’s pleadings. To go outside it is beyond the vires of counsel and amounts to no issue. More so, I have checked the letter of suspension [Exhibit CWJ] and cannot find that the claimant was suspended for replying the query late. Apart from the fact that this is a mere ipse dixit of counsel in address, which is not pleaded, there is no iota of evidence on the document to support this barefaced assertion of counsel. A document speaks for itself. Thus, the assertion is not proved. Finally on this, let me say the fusses discussed above do not in any way solve the issue of whether or not the due process of the law was followed in suspending the claimant. This is the real issue to be examined. To this main issue I now shift my attention.
Now, the learned counsel to the claimant cited sections 197 and 202 of the 1999 Constitution to attack the query issued the claimant and suspension meted on the claimant. The defendants cited section 5(2) of the same 1999 Constitution to justify their actions. It is important to take note of the fact that I have found and held that the purported retirement of the claimant was not proved and that the claimant remained in service. By this, the only issue that remained for investigation is that of suspension. Section 197(1) of the 1999 Constitution creates the State Civil Service Commission while section 202 of the Constitution provides that:
“In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission…shall not be subject to the direction and control of any other authority or person.” [Underline supplied for emphasis]
The crux here is, whether in suspending the claimant, the provisions of section 202 of the Constitution was breached. First of all, let me clear the issue of section 5(2) of the 1999 Constitution cited by the defence as justifying the suspension. I need not waste too much time on this. I agree in toto with the view of the learned counsel to the claimant that this provision does not relate to civil servants. Yes, it is true that section 5(2) of the 1999 Constitution vests all the powers of the State on a Governor. But these powers must be exercised in accordance with the law. That is what is called due process of the law. The implication is that any exercise of power by the Governor or the executive inconsistent with the due process of law is a nullity – see Okoreaffia & Anor v. Agwu & Anor. (2008) LPELR-4724 (CA) 33-34, E-B, on the meaning of due process of law. The implication of this is that, in the exercise of powers the Governor/executive must observe any limitation placed on his exercise of power and must follow the procedures specified to the letter otherwise, the exercise of power fails. That is the implication of check and balances, constitutionalism and rule of law. Rule of law simply means limitation on the exercise of power by the executive.
Now, section 202 of the 1999 Constitution contains a limitation to the powers of the Governor/executive over civil servants. A constitutional provision, like that of ordinary statutes, is not read in isolation. Constitutional provisions are, and must be construed together, in the light of the composite provisions to attain the true meaning of any particular section. Had the learned counsel to the defendants applied this principle, he would have known that the position he took couldn’t be the correct interpretation of section 5(2) of the 1999 Constitution. Section 202 limits the ambit of the exercise of governor’s power to punish a civil servant in any of the states of the Federation. For the governor to exercise any power of discipline, he must refer his complaint against the civil servant to the Civil Service Commission of his State, who would investigate this by following its laid down procedure. This is clearly evident when section 5(2) itself commenced by saying “subject to the provisions of this Constitution…” meaning it is subject to section 202; and section 202 has been so interpreted in a number of judicial authorities – see Hart v. Military Governor of Rivers State [supra] and Nawa v. AG Cross River State [supra] both cited by the learned counsel to the claimant. I read 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.
Having shown that the powers of the Governor under section 5(2) of the Constitution is not absolute and that it is actually limited by section 202 of the Constitution, it remains for me to examine the two documents under consideration and find out from their contents whether they infringed the provisions of section 202 of the 1999 Constitution. Now, the query dated 28th September 2016, tendered by the claimant and marked as Exhibit CWF, as the query issued her, is purportedly issued by one A.N. Eluwa (Mrs.) for Hon. Attorney-General/Commissioner for Justice just like the letter of suspension dated 16th November 2016, tendered by the claimant and marked as Exhibit CWJ. One J.N. Amasiatu issued it for Hon. Attorney-General/Commissioner for Justice. Now, the implication is that, it is the Attorney-General that issued the query and the letter of suspension, and that, both Eluwa and Amasiatu were agents of the Attorney-General for these purposes. The question is: by the provisions of section 202 of the 1999 Constitution, does the Attorney-General have the power to issue the query and suspend the claimant without pay? Suspension without pay is, without doubt, a form of punishment: discipline. It is not in doubt that the Attorney-General is an agent of the Governor and acts for and on behalf of the Governor. Any powers that the Governor lacks, the Attorney-General cannot have because, you cannot delegate a power that you don’t have. Neither could the Civil Service Commission also delegate this power to the Attorney-General. Such delegation, if done, would clearly infringe section 202 of the 1999 Constitution. Interpreting similar provisions of section 64(1) of the defunct Rivers State Constitution, it was held in Hart’s case p. 24, C-F [supra]:
“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…”
Arising this decision of the Supreme Court, it follows that the exercise of power by the Attorney-General to discipline the claimant by issuing her with query and letter of suspension is without vires. It also follows that, if the Civil Service Commission of Imo State actually delegated the power to suspend the claimant to the Attorney-General, although this has not been proved by the defendants, such delegation amounts to abdication of the constitutionally conferred functions of the Civil Service Commission of Imo State; and such exercise of power is void, as held in Hart’s case [supra]; and additionally, such exercise of power cannot be valid because, the law is delegatus non potest delegare – see Ibadan City Council v. Odukale (1972) LPELR-1380 (SC) 13, F-G. Although, I note that Exhibit CWJ states thus:
“I am directed to refer to the Civil Service Commission’s Letter No. CSC/SS.433/I/9 of 7th November, 2016 on the above mentioned subject matter and to convey the Commission’s approval for your indefinite suspension from duty without pay with effect from 3rd November, 2016.
Please, be guided accordingly.
SIGNED
J.N. Amasiatu
For Hon. Attorney-General/
Commissioner for Justice”
Thus, the letter of suspension referred to a letter from the Civil Service Commission and stated that, the Commission approved the indefinite suspension of the claimant. From the tenor of Exhibit CWJ, it would appear that it merely ratified a suspension that had already been done and not that it delegated power of suspension to the learned Attorney-General. This is because it purportedly approved a suspension ostensibly in place since 3rd November 2016. And all that is before me is this Exhibit CWJ issued by the learned Attorney-General and relied on by both sides as the letter suspending the claimant. By paragraph 8 of the Statement of Defence and paragraph 10 of the witness deposition of DW1, it was admitted that the date of suspension was 16th November 2016 and not 3rd November 2016. By this, it means the purported approval was a nullity since there was no prior suspension that took place on 3rd November 2016 to be approved; and Exhibit CWJ, not being the letter of suspension, but a mere approval of a non-existent suspension, is therefore of no effect or rather ineffective to convey suspension: you cannot built something on nothing, it will not stand. I also take note of the fact that, no evidence was given as to the existence of the letter referenced in Exhibit CWJ and its contents and none was tendered nor any frontloaded or mentioned in the written deposition of DW1. The implication is that, there is no letter of such in existence or that, if produced its contents would be unfavourable to the defendants – see Oceanic Securities International Limited v. Balogun & Ors (2012) LPELR-9218 (CA) 30, E-G. To hold otherwise, is to engage in speculation, which a court of law is not permitted to do – see Trimskay Nigeria Limited v. Bankole-Oki (2015) LPELR-24518 (CA) 49, A-D. The logical effect is that, the defendants failed to prove any delegation of power to the Attorney-General to discipline an officer of the claimant’s calibre, who was a Deputy-Director before her purported suspension.
It is important to note that, even if delegation of power was proved, which is not the case here; it must be shown that such delegation applies to officers in the claimant’s cadre or of the claimant’s calibre or rank. Where this is not done, the exercise of power by the Attorney-General, as in this case, is null and void and no effect ab initio. Then, even if such power were lawfully delegated to the Attorney-General, which is not the case here, the Attorney-General could not have lawfully re-delegated such power to an officer under him, it must be personally exercised, by virtue of the doctrine of delegatus non potest delegare [supra], except it was proved that the Attorney-General is empowered to re-delegate the power, which is equally not proved in the instant case. It is also to be noted that none of the writers of the two letters in issue stated s/he was acting for the Civil Service Commission. They stated clearly that they were acting for the learned Attorney-General.
I wonder why the Civil Service Commission, that legally had the power to discipline the claimant, would purportedly prefer to take the circuitous journey of purportedly writing to convey approval for the suspension of the claimant to the learned Attorney-General, who now wrote to signify receipt of approval to the claimant, instead of directly suspending the claimant by itself. This looks incongruous. In any case, whatever it is is not even relevant. I have found and held that Exhibit CWJ is ineffective to suspend the claimant, and that there is no iota of proof that any approval was received from the Civil Service Commission and that, even if received, it would be ultra vires the Civil Service Commission for abdicating its duty and the learned Attorney-General for exercising a power he lacks. I therefore hold that the touted exercise of the power to suspend the claimant by the learned Attorney-General of Imo State [the 2nd defendant] is without vires, is usurpation of the powers of the Civil Service Commission of Imo state, and thus, null and void and of no effect ab initio.
It therefore follows that issues 1 and 2 as formulated by me above, are resolved in favour of the claimant and against the defendants. Having resolved both issues in favour of the claimant and against the defendants, the next thing is to examine the remedies to which the claimant is entitled. And this leads us to the 3rd issue as formulated above, which relates to the reliefs claimed by the claimant. The maxim is ubi jus ubi remedium – see Oyewo v. Komolafe (2010) LPELR-4820 (CA) 44, E-F. To what relief is the claimant entitled? To answer this question, it must be borne in mind that there is consensus ad idem that this employment has statutory flavour. What then, is the right relief, a court grants, where it comes to the conclusion that an employee with statutory flavour was unlawfully disciplined? The Supreme Court in Osisanya v. Afribank Nigeria Plc (2007) LPELR-2809 (SC) 17-18, E-G answered this question:
“When an office or employment has a statutory flavour in the sense that its conditions of service are provided for and protected by statute or regulations there under, any person holding that office or in that employment enjoys a special status over and above the ordinary master servant relationship. In the matter of disciplining of such a person, the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in appropriate proceedings.”
CONCLUSION
The Court of Appeal in Akinyosoye v. Federal Inland Revenue Services (2012) LPELR-7964 (CA) 32, C-D held that “the law is settled that the remedy for wrongful termination of employment with statutory flavour is reinstatement.” I have closely perused all the reliefs claimed by the claimant and found that they all relate to reinstatement. The claimant initiated appropriate proceedings to claim her rights and is therefore eminently entitled to all the 9 [nine] reliefs claimed without exception. I therefore grant all the nine reliefs claimed without exception in full. For the avoidance of doubt, I grant reliefs (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) & (ix) in full. Therefore, this judgment is to be complied with within 30 days, failing, which the judgment sum would begin to attract 10% post-judgment interest rate as claimed in relief (vii) until the judgment is fully complied with. The defendants shall pay to the claimant, cost of N300,000.00 [Three Hundred Thousand Naira only]. This shall be the judgment of the Court. Judgment is accordingly entered.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Judge
NATIONAL INDUSTRIAL COURT OF NIGERIA
