HON. NGYAMANU SHADRACK -VS- THE GOVERNOR OF ADAMAWA

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

ON THE 18^TH DAY OF SEPTEMBER, 2019

SUIT NO: NICN/YL/10/2019

BETWEEN

HON. NGYAMANU SHADRACK …………………CLAIMANT

AND

1.THE GOVERNOR OF ADAMAWA STATE

2.ATTORNEY GENERAL ADAMAWA STATE ……….. ………RESPONDENTS

3.ADAMAWA STATE HOUSE OF ASSEMBLY

REPRESENTATION

T.H. Shabo for the claimant.

Ibrahim Mohammed, SSC1, MOJ. Adamawa State, for the 1^st and 2^nd respondents.

Abubakar Sa’ad with Sawa Ajiya for the 3^rd respondent.

JUDGMENT

INTRODUCTION

This judgment borders on the lawfulness or otherwise of the suspension and or dissolution of the appointment of the Claimant as member of Adamawa State House of Assembly Service Commission in view of sections 4(5) and 6(1)(2) of the Adamawa State House of Assembly Service Commission Law 2002.

The claimant took out an originating summons on 13/6/2019 accompanied by the documents as required by the Rules of this Court. The 1^st and 2^nd respondents filed a joint counter affidavit on 27/6/2019 accompanied by exhibits and a written address. The claimant, in response, filed a further and better affidavit and a written address on 28/6/2019.

The 3^rd respondent filed a counter affidavit on 28/6/2019 and in response, the claimant filed a reply on points of law on 28/6/2019.

This case was argued on 1/7/2019. The claimant’s motion on notice for injunction was withdrawn and struck out.

The claimant seeks the following reliefs;

1.A Declaration that the claimant as Commissioner or member of the Adamawa State House of Assembly Service Commission, having been so appointed by the then Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, is entitled to a guaranteed tenure of five years removable by the 1^st or 2^nd respondents only by reasons of inability to discharge the functions of his office or by misconduct.

A Declaration that by the clear provisions of sections 4(5) and 6(1)(2) of the Adamawa State House of Assembly Service Commission Law 2002,the Respondents cannot validly dissolve, suspend, remove or terminate the appointment of the Claimant as Commissioner or member of Adamawa StateHouse of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office.
A Declaration that the purported dissolution and or suspension of the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office is ultra vires the powers of the 1^stRespondent and therefore, unconstitutional, null and void and of no effect whatsoever .
An Order setting aside the purported dissolution and or suspension of the appointment of the claimant as Commissioner or member of Adamawa State House of Assembly Service Commission as null and void of no effect and a further order of perpetual injunction restraining respondents jointly and severally from interfering with the claimants’ performance of the duties of his office.
An order restraining the 1^strespondent or anyone acting through him from appointing any other person as commissioner or member of the Adamawa State House of Assembly Service Commission whether in acting or in permanent capacity while the appointment of the Claimant is subsisting.
An Order directing the 1^stand 2^ndrespondents to pay the claimant his salaries and or arrears of salaries and other entitlements effective from the month of April when he assumed office.
Any other or better orders the court may deem it fit to make in the Circumstance of this suit.
FACTS OF THE CASE

From the facts deposed to by the parties, on the 9^th day of April, 2019, the then Governor of Adamawa State sent the name of the Claimant to the 3^rd Respondent for confirmation. The 3^rd respondent through a letter signed by the Clerk of the 3^rd respondent, communicated the resolution of the 3^rd respondent approving the appointment of the claimant on the 10/04/2019. On the 15^th April, 2019 claimant took Oath of allegiance and Oath of office. The present Governor of Adamawa State Hon. Ahmadu Umar Fintiri in a Radio and Television broadcast aired on the 6^th day of June, 2019 suspended and or dissolved the claimant.

CASE OF THE CLAIMANT

In a 14 paragraph affidavit deposed to by the claimant, the claimant deposed that on the 9^th day of April, 2019, the then Governor of Adamawa State Mohammed Umar Jibrilla nominated him as Commissioner or Member III of the Adamawa State House of Assembly Service Commission. The Adamawa State House of Assembly sat and confirmed his appointment as requested for by the then Governor of Adamawa State – Senator Mohammed Umar Jibrilla. That he was issued with appointment letter in his capacity as Commissioner or member III in the Adamawa State House of Assembly Service Commission on the 12^th April, 2019. On the 15^th April, 2019 claimant took Oath of allegiance and Oath of office in his capacity as Commissioner or member III and assumed office on the same date.

That to the shock of the Claimant, the present Governor of Adamawa State Hon. Ahmadu Umar Fintiri in a broadcast aired or made on the 6^th day of June, 2019 at 7 pm which broadcast was aired on ABC (Radio Station), Gotel Radio Station, Gotel Television, and ATV purported to have suspended and or dissolved the Chairman, Commissioners or members I, II, III, and IV in the commission without any reason advanced. That his five year tenure started on 10/4/2019 and he can only be removed on grounds of inability to discharge the functions of his office or for misconduct. There is a circular from the office of the 1^st respondent signed by the secretary to the State Government directing the Secretary to the State House of Assembly Service Commission to strictly adhere to the Directive of the 1^st Respondent as contained in his maiden broadcast of 6/6/2019 regarding his employment as well as others. Exhibit 8.The 1^st Respondent is bent on ensuring that he is removed from office at all cost.

The 1^st respondents letter forwarding the recommendation of the claimant to the 3^rd respondent, resolution approving his appointment by 3^rd respondent, claimant’s appointment letter, acceptance letter, claimants’ oath of office and oath of allegiance and the Votes and Proceedings of the 3^rd respondent(exhibit 2A) were all attached as exhibits.

Submitting in his written address for the claimants, learned T.H.Shabo Esq. argued in his issue one that the claimant having been appointed as Commissioner or member III of the Adamawa State House of Assembly Service Commission by the Governor of Adamawa State pursuant to section 4(3) of the Adamawa State House of Assembly Service Commission law 2002 and whose appointment was confirmed by the Adamawa State House of Assembly is entitled to a guaranteed tenure of five (5) years as provided for under section 4 (5) of the Adamawa State House of Assembly Service Commission law 2002 and can only be removed as enshrined under section 6(1) & (2) of the said law for reasons of inability to discharge the functions of his office and misconduct. Counsel reproduced the provisions of sections 4(3),4(5) and 6 (1)&(2)of the Adamawa State House of Assembly Service Commission law 2002 and relied on the cases of ALLI – VS – GOV. BORNO STATE (2008) ALL FWLR (PT 408) 365 AT 373 – 374 and GOVERNOR, KWARA STATE – VS – OJIBARA (2007) ALL FWLR (PT348) 864 at 872.

Learned claimants’ counsel argued issues 2 and 3 together. Counsel submitted that by virtue of section 4(3)&(5) and 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002, the respondents cannot validly suspend, dissolve, remove or terminate the appointment of the claimant as Commissioner III of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office and that the purported suspension and or dissolution of the appointment of the Claimant without any allegation of misconduct or for inability to discharge the functions of his office is ultra vires the powers of the 1^st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever. Counsel also relied on the case of GOVERNOR, KWARA STATE – VS – OJIBARA supra.

CASE OF THE 1^ST AND 2^ND RESPONDENTS

In a 12 paragraph counter affidavit, the 1^st and 2^nd respondents deposed that the 1st Respondent or any other government official or functionary did not at any time material to this suit, dissolve, terminate or remove the Claimant from office. That the 1^st Respondent by his speech only suspended the Claimant for failure to adhere to the laid down procedure in the recruitment process vide the use of waiver in the State House of Assembly Service commission during the recruitment exercise in which the Claimant participated. That the 1^st Respondent in his act of suspending the claimant did not in any way violate the provisions of the Adamawa State House of Assembly Service Commission law 2002.

The speech of the 1^st Respondent suspending the Claimants was attached and marked Exhibit ‘A’.

Submitting for the 1^st and 2^nd respondents, learned M.M. Hamidu Esq. formulated 1 question for determination directly borne out of the question formulated by the claimant.

Arguing his lone issue, learned counsel submitted that there is nowhere in sections 4(3)&(5) and section 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002, that prohibits or prevents Governor of a State, including the 1^st Respondent from suspending an appointee from office pending an inquiry; Without recourse to the House of Assembly.

In fact, sections 4 and 6 of that law did not prohibit the 1^st Respondent from removing the Claimant from office. The only condition placed by section 6 is that the removal shall be backed by an address of the State House of Assembly, supported by two-thirds majority and which is not the case in issue in this matter. The issue here is the Suspension of the Claimant.

By virtue of Section 11(1)(b) of the interpretation Act, where an enactment confers a power to appoint a person either to an office or to exercise any function, it includes the power to suspend that person.

CLAIMANTS FURTHER AND BETTER AFFIDAVIT IN RESPONSE TO 1^ST AND 2^ND RESPONDENTS’ COUNTER AFFIDAVIT.

In a 9 paragraph further and better affidavit, deposed to by the claimant, he deposed that he has not been paid Salaries from April, 2019 till date while others have been paid. The depositions in paragraphs 4,5, 6 and 7 of the further and better affidavit are an exposition of the speech of the 1^st Respondent suspending the Claimants attached and marked Exhibit ‘A’, which is a duty better performed by counsel in his written address and not by claimant in an affidavit.

In his written address, learned claimant’s counsel submitted that reliance on the said section 11(1) (b) of the Interpretation Act is not helpful to the 1^st and 2^nd respondents. The procedures of appointment and removal are provided. There is no omission or lacuna. That Section 11 of the Interpretation Act states that “this Act shall apply to all the provisions of any enactment except in so far as the contrary intention appears in the act or the enactment in question”. That it is clearly revealed by Exhibit “A” attached to the 1^st and 2^nd Respondents counter affidavit, that the 1^st respondent dissolved the appointment of the Claimant.

CASE OF THE 3^RD RESPONDENT

In its 5 paragraph counter affidavit, the 3^rd claimant deposed in paragraph 3 (i) to (xii) as follows;

The Claimant was nominated by the then Governor of Adamawa State, Senator Mohammadu Umaru Jibrilla as Member III of Adamawa State House of Assembly Service Commission. The then Governor sent the name of the Claimant for confirmation by the 3^rd Respondent on the 9^th April, 2019. The 3^rd respondent through a letter signed by the Clerk of the 3^rd respondent communicated the resolution of the 3^rd respondent approving the appointment of the claimant on the 10/04/2019. Members of the 3^rd Respondent proceeded on recess from the 09/04/2019 and only resumed on the 27/05/2019.That by the established practice of the 3^rd Respondent any decision or resolution of the 3^rd Respondent can be valid only upon its adoption on the next legislative day. That the resolution of the 3^rd respondent approving the appointment of the Claimant was not adopted at the time he was sworn- in. The Claimant took his Oath of office on 15/04/2019 before the adoption of the approval of his appointment by the 3^rd Respondent. That the office to which claimant was appointed became vacant since December 2018 but the then Governor did not deem it fit to make the appointment until the last minute of his administration when he lost his bid to be re-elected for the second term. The suspension is to allow the 1^st Respondent to conduct unbiased investigation of the process leading to the appointment of the Claimant.

Learned counsel for the 3^rd respondents formulated 2 issues thus;

Whether the Claimant was duly confirmed by the 3^rd respondent to warrant him taking the Oath of Office and assuming duty as he did.
Whether the pronouncement of the 1^st Respondent in his broadcast amounted to removal/dissolution of Claimant to warrant compliance with Section 6(1) of the Adamawa State House of Assembly Service Commission law 2002.

These issues correspond to questions 1 and 2 formulated by the claimants counsel.

On his issue 1, learned counsel submitted that for the decision of the House to have any effect, it must be approved by the House in its next day of legislative business. The said decision, resolution or approval must be adopted at the next legislative day preceding the day the act was performed. In the instant case, the confirmation of the Claimant was done long after he had taken his Oath of Office, i.e. 27/05/2019. Although the 3^rd Respondent has adopted its proceeding of the 9/04/2019 on the 27/5/2019, the adoption will not cure the defect already committed in the process. The claimant having failed to comply with the rule requiring the adoption of his appointment before proceeding to take Oath and resume duty has shot himself and the consequences is that both the appointment letter and the Oath are a nullity same having failed to fulfill the precondition for their validity.

Arguing his issue 2, counsel submitted that from paragraph 3(2) 1^st Respondent’s Broadcast to the State on 6/6/ 2019, it is indisputable that what is intended is the suspension of the Claimant and not dissolution or removal to warrant the compliance with the provision of Section 6 (2) of the Adamawa State House of Assembly Service Commission law 2002. That the 1^st Respondent is only required to comply with Section 6 (2) of the Law in removing the Claimant not suspending him as he did.

CLAIMANTS’ REPLY ON POINTS OF LAW IN RESPONSE TO 3^RD RESPONDENT’S COUNTER AFFIDAVIT.

Submitting for the claimants in response to the need for adoption of the 3^rd respondents confirmation before an appointment becomes valid, learned counsel argued that the provision of Section 4(3) of the Adamawa State House of Assembly Service Commission law 2002, the appointment of the claimant does not require the confirmation (adoption of confirmation) of the appointment by the 3^rd respondent. The said confirmation (adoption of confirmation) was not needed.

That the only way recognized by the Law to discipline the claimants and only in event of inability to perform the functions of his office or misconduct is by way of removal as laid down in the law.

1^ST AND 2^ND RESPONDENTS’ FURTHER AND BETTER AFFIDAVIT IN OPPOSITION TO ORIGINATING SUMMONS.

The 1^st and 2^nd respondents filed a further and better affidavit in opposition to the originating summons on 28/6/2019 and adopted same. The purpose which is to state that the claimant was appointed on 12/4/2019 which is after 28/3/2019 so his appointment was caught up by the suspension order in paragraph 3 line 8 of exhibit A attached to their counter affidavit, which facts, in any case, are already before the Court by reason of documents.

This further and better affidavit and its written address is strange to the Rules of Court and it is hereby discountenanced.

QUESTIONS FOR DETERMINATION

The claimant formulated 3 questions for determination as follows;

Whether from the combined reading of sections 4(3)&(5) and 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002, the Claimant who has been appointed as Commissioner or member of the Adamawa State Civil Service Commission by the Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, is not entitled to a guaranteed tenure of five years; removable only by reasons of inability to discharge the functions of his office or by misconduct?
A Declaration that by the clear Provisions of sections 4(3)&(5) and 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002, the Respondents cannot validly suspend, dissolve, remove or terminate the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office.
Whether the purported suspension and or dissolution of the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission by the 1^st respondent without any allegation of misconduct or for inability to discharge the function of his office is not ultra vires the power of the 1^st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever?

10.COURT’S DECISION.

The contention of the claimant is that his appointment was in accordance with the provisions of the Adamawa State House of Assembly Service Commission law 2002, and he cannot be suspended or removed otherwise than in accordance with that law. The respondents have contended that the claimant was not removed but suspended so no need for compliance with section 6 of the said Law.

ISSUE1: On the implication of sections 4(3)&(5) and 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002, on the tenure and discipline of the claimant.

The appointment, tenure, qualification and discipline of the claimant is as provided for in sections 4(3),4(5) and 6(1)&(2) of the Adamawa State House of Assembly Service Commission law 2002. These sections provide as follows;

4(3) The Governor shall appoint the Chairman and Members of the Commission.

4(5) A member of the Commission shall hold office for a period of five years from the date of his appointment and he may be re-appointed for another term only.

6(1) The Chairman or any member the Commission shall be removed from that office by the Governor acting upon an address by two – thirds majority of the State House of Assembly praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or for any other cause) or for misconduct.

6(2) Notwithstanding the provision of subsection1 of this section, The Chairman or any member of the Commission shall be removed from that office by the State House of Assembly for inability to discharge the functions of his office or for misconduct.

The procedure for the removal of the claimant as provided for in section 6 is not contested by the respondents. Their contention is that the claimant was not removed from office but suspended so section 6 of the Law is not applicable. That the Governor who has the power to appoint also has the power to suspend as provided in section 11(1) (b) of the Interpretation Act.

I have carefully read exhibit A, the Radio and Television text of the speech of the 1^st respondent, the claimant who was appointed after 28^th March 2019 is suspended in paragraph 3 as follows;

“Equally, all appointments made on or after 28^th March 2019 are hereby suspended on grounds of public interest”.

The claimant is dissolved in paragraph 5 in the following words;

“All the Chairmen and Members of Boards, Parastatals and Commissions in the State are hereby dissolved”.

Dissolution supersedes suspension. Section 11(1) (b) of the Interpretation Act is therefore inapplicable.

In any event, the power to appoint includes not only the power to suspend but to remove as can be seen in section 11(1)(b) of the interpretation Act relied upon by learned counsel. That subsection made reference to “remove or suspend” not just “suspend” as chosen by counsel. Now counsel concedes that the power to remove is only exercisable in line with section 6 of the Adamawa State House of Assembly Service Commission law 2002, but that the section is not applicable herein because the claimant was not removed but suspended. In other words, a different rule applies when it comes to suspension.

The power to remove or suspend go together according to the Interpretation Act, after all, they are both disciplinary actions. Furthermore, the power to remove or suspend, according to section 11(1) ( c) of the Interpretation Act is only exercisable in the manner and subject to the limitations and conditions applicable to the power to appoint.

Section 6 of the Adamawa State House of Assembly Service Commission law 2002 provides that the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.

Applying section 11(1) (b) and (c) of the Interpretation Act to this case, the 1^st respondent has the power to appoint, remove or suspend the claimant subject to confirmation by a resolution of the House of Assembly of the State of Adamawa State as required by Section 6 of the Adamawa State House of Assembly Service Commission law 2002. Whether the claimant was removed or suspended is therefore immaterial as the same rule applies.

Any exercise of any power by the 1^st respondent, to suspend, remove or dissolve the persons appointed pursuant to section 4(3) of the Adamawa State House of Assembly Service Commission law without an address of the House of Assembly of the State as required by section 6(1) of the Adamawa State House of Assembly Service Commission law 2002 is null and void.

ISSUES 2 and 3; Whether the Claimant was validly appointed and confirmed?

It is the contention of the 3^rd respondent that the claimant took oath of office on 15/4/2019 before the resolution of the 3^rd respondent confirming his appointment made on 9/4/2019 was confirmed on 27/5/2019 by the 3^rd respondent; therefore his appointment is not valid.

The facts before the Court is that the claimant’s name was nominated and sent to the 3^rd respondent for its confirmation. The 3^rd respondent sat, approved the said appointment by a resolution and communicated same to the Governor. The 3^rd Respondent’s Votes of proceedings No.106 held on the 9^th April, 2019 wherein claimant’s nomination were confirmed was attached as Exhibit 2A. Page 3 of the said proceedings reads as follows;

(c). Appointment of Chairman and Members of Adamawa State House of Assembly Service Commission.

Motion made and question proposed. “That this Hon. House do now resolve to consider the letter” Hon. Mohammed Hayatu Atiku (Uba/Gaya).

Agreed to.

Debate.

Motion made and question proposed, That Dauda Jauro, Hon. Jibrilla Duhu, Hon. Yawale Boltingo, Hon. Ngyamanu Shadrack and Abubakar Hamma be confirmed as Chairman and Members of the Adamawa state House of Assembly Service Commission respectively. Hon. Mohammed Hayatu Atiku (Uba/GaYa).

Agreed to.

Mr. Speaker directed the Clerk to communicate the Resolution of the Hon. House to the Executive Governor.

According to the 3^rd respondent, “the 3^rd respondent through a letter signed by the Clerk of the 3^rd respondent communicated the resolution of the 3^rd respondent approving the appointment of the claimant on the 10/04/2019”.

In another breath, the 3^rd respondent claims that “by the established practice of the 3^rd Respondent any decision or resolution of the 3^rd Respondent can be valid only upon its adoption on the next legislative day”.

There is no evidence before the Court to prove that by the established practice of the 3^rd Respondent any decision or resolution of the 3^rd Respondent can be valid only upon its adoption on the next legislative day. This allegation is not proved neither was it contained in the letter of confirmation sent to the Governor.

The letter of confirmation from the 3^rd respondent to the Governor (exhibit 2) reads;

To the Governor,

Adamawa State,

Yola

Through:

The secretary,

To the Adamawa State Government.

State Secretariat,

Yola

HOUSE RESOLUTION ON APPOINTMENT OF CHAIRMAN AND MEMBERS

OF ADAMAWA STATE HOUSE OF ASSEMBLY SERVICE COMMISSION, YOLA

I am directed to write and convey the HON. House approval during its plenary of Tuesday 9^th April,2019 of the appointment of the under listed as Chairman and Members of the House of Assembly Service Commission,

(i) Dauda Jauro ……………… Chairman

(ii) Hon. Jibrilla Duhu ………………… Commissioner I

(iii) Hon. Yawale Boltingo ………………… Commissioner II

(iv) Hon. Ngyamanu Shadrack ………………… Commissioner III

(v) Abubakar Hamma ………………… Commissioner IV

Above is conveyed for your information and further necessary action please.

Mr. Francis R, Gwansenso

Clerk to the House

It is my firm view and finding that the above letter, exhibit 2, completes the requirement of confirmation by resolution of the 3^rd respondent as required.

Most importantly, on the need for a resolution of the House of Assembly of the State, by the evidence before the Court, such a resolution was made on 9/4/2019 and the clerk of the house was directed to communicate the resolution to the Governor and such was done on 10/4/2019. The “further necessary action” referred to in the letter is and can be nothing but swearing in. That completes the requirement of a confirmatory resolution by the 3^rd respondent.

I accordingly find and hold that the appointment of the Claimant by the Governor was duly confirmed by the 3^rd respondent.

11.COURT ORDER

For all that has been said and for the avoidance of doubt, the case of the claimant succeeds and it is hereby declared and ordered as follows;

A Declaration that by the clear provisions of sections 4(5) and 6(1)(2) of the Adamawa State House of Assembly Service Commission Law 2002, the Respondents cannot validly dissolve, suspend, remove or terminate the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office.

3.A Declaration that the purported dissolution and or suspension of the appointment of the Claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office is ultra vires the powers of the 1^st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever .

An Order setting aside the purported dissolution and or suspension of the appointment of the claimant as Commissioner or member of Adamawa State House of Assembly Service Commission as null and void of no effect.

5.An order of perpetual injunction restraining respondents jointly and severally from interfering with the claimants’ performance of the duties of his office.

An order that the claimant is entitled to his salaries and allowances from 15/4/2019 to 14/4/2024 unless otherwise removed for inability to discharge the functions of his offices or for misconduct as prescribed by theAdamawa State House of Assembly Service Commission law 2002.

This is the judgment of the Court and it is entered accordingly.

………………………………

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, YOLA.