ALH. SHU’AIBU BOBBO HAMID & 4 OTHERS -VS- THE ADAMAWA STATE & ORS

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/08/2019

BETWEEN

ALHAJI SHUAIBU BOBBO HAMID
MOHAMMED ABDU MAYAS
AMINA KABIRU …………………CLAIMANT
ALIYU SADIQ

5.SHEHU AUDU

1.THE GOVERNOR OF ADAMAWA STATE

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

3.ADAMAWA STATE HOUSE OF ASSEMBLY

REPRESENTATION

T.H. Shabo for the claimants.

Samuel Yaumande, DCL, MOJ. Adamawa State, with

A.M.Aliyu SSCII 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 appointments of the Claimants as Chairman and Commissioners of Adamawa State Civil Service Commission in view of sections 198, 199(1) (c), 201(1),(2) of the 1999 constitution of the Federal Republic of Nigeria (As amended).

The claimants took out an originating summons on 7/6/2019 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 21/6/2019 accompanied by exhibits and a written address. The claimants, in response, filed a further and better affidavit and a written address on 25/6/2019.

The 3^rd respondent filed a counter affidavit on 28/6/2019 and in response, the claimant filed a further and better affidavit on 28/6/2019.

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 The claimants’ motion on notice for injunction was withdrawn and struck out.

The claimants seek the following reliefs;

A Declaration that the claimants as Chairman and Commissioners or members respective1y of the Adamawa State Civil Service Commission, having been so appointed by the then Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, are entitled to a guaranteed tenure of five years removable only by reasons of inability to discharge the functions of their offices or by misconduct.
A Declaration that by the clear provisions of sections 199(1-) ( c)&. 201(1) of the constitution of the Federal Republic of Nigeria 1999 (as Amended), the Respondents cannot validly suspend, dissolve, remove or terminate the appointments of the Claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their office.

3.A Declaration that the purported dissolution and or suspension of the appointments of the Claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their 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 appointments of the claimants as Chairman and Commissioners or members of Adamawa State Civil 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 claimant’s performance of the duties of their offices.
An order restraining the 1^strespondent or any one acting through him from appointing any other persons as chairman and commissioners membersof the Adamawa State Civil Service Commission whether in acting or in permanent capacity(ies) while the appointments of the Claimants are subsisting.
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 names of the Claimants 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 claimants on the 10/04/2019. On the 15^th April, 2019 claimants all 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 5^th day of June, 2019 suspended and or dissolved the claimants. The 1^st and 3^rd Claimants before their present reappointment had previously served as Members of the Adamawa State Civil Service Commission.

CASE OF THE CLAIMANTS

In an 18 paragraph affidavit of 10 pages deposed to by the 2^nd claimant on behalf of all the claimants, the claimants depose that on the 9^th day of April, 2019, the then Governor of Adamawa State Mohammed Umar Jibrilla nominated the 1^st to 5^th Claimants as Chairman, Commissioners or Members l, II, III, and IV of the Adamawa State Civil Service Commission respectively.

The Adamawa State House of Assembly sat and confirmed our appointments as requested for by the then Governor of Adamawa State – Senator Mohammed Umar Jibrilla. That all the claimants were issued with appointment letters in our capacities as Chairman, Commissioners or members I, II, III and IV in the Adamawa State Civil Service Commission on the 12^th April 2019. That on the 15^th April, 2019 claimants all took Oath of allegiance and Oath of office in their various capacities as Chairman, Commissioners or members I, II, III and IV and assumed office on the same date. That all our appointments letters, except that of the 1^st claimant, whose appointment as Chairman of the Commission has a little higher consolidated Annual Basic Salary than others, have all the same terms and clauses.

That to the shock of the Claimants, the present Governor of Adamawa State Hon. Ahmadu Umar Fintiri in a broadcast aired or made on the 5^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 claimants as Chairman, Commissioners or members I, II, III, and IV in the commission without any reason advanced. That their five year tenure started on 15/4/2019 when they took oath of office and they can only be removed on grounds of inability to discharge the functions of their offices or for misconduct. That the 1^st Respondent is bent on ensuring that the claimants are removed from their offices at all cost.

The 1^st respondents letter forwarding the recommendation of the claimants to the 3^rd respondent, resolution approving their appointment by 3^rd claimant, claimants’ appointment letters, claimants’ oath of office and oath of allegiance were all attached as exhibits.

Submitting in his written address for the claimants, learned T.H. Shabo Esq. argued in his issue1 that the claimants having been appointed as Chairman and Commissioners respectively of the Adamawa State Civil Service Commission by the Governor of Adamawa State pursuant to section 198 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and whose appointments were confirmed by the Adamawa State House of Assembly are entitled to a guaranteed tenure of five (5) years as provided for under section 199 (l) (c) of the 1999 constitution (as Amended) and can only be removed as enshrined under section 201(1) & (2) of the Constitution for reasons of inability to discharge the functions of their offices and misconduct. Counsel reproduced the provisions of sections 198,199,and 201 of the Constitution and relied on the cases of ALLI – VS – GOV. B0RNO 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 199(1)(c) and 201(1) of the 1999 of the federal Republic of Nigeria (As Amended), the respondents cannot validly suspend, dissolve, remove or terminate the appointments of the claimants as Chairman and Commissioners of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their offices and that the purported suspension and or dissolution of the appointments of the Claimants without any allegation of misconduct or for inability to discharge the functions of their offices 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 15 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 Claimants from office. That the 1^st respondent by his speech only suspended the Claimants for failure to adhere to the laid down procedure in the recruitment process vide the use of waiver in the State Civil Service during the recruitment exercise conducted by the Claimants. That the 1^st respondent in his act of suspending the claimants did not in any way violate the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The 1^st and 3^rd Claimants before their present reappointment had previously served as Members of the Adamawa State Civil Service Commission. The appointment and confirmation of the 2^nd, 4th and 5^th Claimants are lumped up together with that of the 1^st and 3^rd Claimants. That the reliefs sought by the Claimants are jointly claimed and lumped up together.

The speech of the 1^st respondent suspending the Claimants was attached and marked Exhibit ‘A’. The letter confirming their appointments by 3^rd respondent and the previous appointment letters of the 1^st and 3^rd claimants in 2014 were attached as exhibits B, C1 and C2.

Submitting for the 1^st and 2^nd respondents, learned A.M. Iliyasu Esq. formulated 3 questions for determination. Only his question 1 and 2 are directly borne out of the question formulated by the claimants. His 3^rd question is whether the appointment of the 2^nd, 4^th and 5^th claimants lumped together with the 1^st and 3^rd claimants who are now seeking a joint relief are not altogether tainted with illegality and therefor null and void.

Arguing on issue 1, learned counsel submitted that there is nowhere in sections 198, 199 and 201 of the 1999 Constitution of Nigeria (as amended) 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 198, 199 and 201 of the Constitution did not prohibit the 1^st respondent from removing the Claimants from office. The only condition placed by section 201 (1) of the Constitution 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 Claimants. 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.

Learned counsel also argued his issues 2 and 3 together. Counsel submitted that the 1^st and 3^rd Claimants were previously confirmed by the Adamawa State House of Assembly on Monday 23^rd December 2013 upon their appointment by the then Governor of Adamawa State and were issued appointment letters on the 22^nd January, 2014 and the tenure expired on the 21^st January, 2019. That the current appointment and confirmation of appointment of the 1^st and 3^rd claimants is against the Provisions of section 200 (3) of the 1999 Constitution which does not allow a person to be reappointed for a second term as a Member of the Commissions established under section 197 of the 1999 Constitution (as amended).

The purported reappointment of the 1^st and 3^rd Claimants as Members of the Adamawa State Civil Service Commission is a nullity. Counsel urged the Court to so declare the purported reappointment of the 1^st and 3^rd Claimants.

That the 1^st and 3^rd claimants are not entitled to any declaratory relief in the face of the provision of section 200(3) of the 1999 Constitution (as amended) and Exhibits B. C and C1 attached to the counter affidavit.

That where a claim is contaminated and lumped up with incompetent Claim, the whole claim is liable to be struck out. NDIC V. GOVERNING COUNCIL, ITF (2012) 9 NWLR (PT 1305) 252 AT 258.

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

In a 13 paragraph further and better affidavit, deposed to by the 2^nd claimant, he deposed that the Claimants also accepted their appointments in writing. That in the exercise of our power to appoint, discipline civil servants in the State, our Commission is not subject to direction and control of any authority or person. That we have not been paid Salaries from April, 2019 till date while others have been paid.

The depositions in paragraphs 6,7,8,9 and 10 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 claimants 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 1 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”. In the instant case, the Constitution has a contrary intention over the appointments of the claimants which require confirmation from the House of Assembly.

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 appointments of the Claimants. Specific mention of the Claimants under paragraph 5 of Exhibit “A” supersedes the directive that all appointments into Civil Service Commission are hereby suspended under paragraph 3. It is trite law that in construing statute or provisions of any instrument which mentioned a thing in both general and special terms, the provisions of the special provision shall apply to it.

That Section 200 (3) of the 1999 Constitution only prohibits a member who had been appointed twice on previous occasions for reappointment except if his appointment was by virtue of ex-officio membership.

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 Claimants were nominated by the then Governor of Adamawa State, Senator Mohammadu Urnaru Jibrilla as Chairman and Members of Adamawa State Civil Service Commission. That the then Governor sent the names of the Claimants 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 claimants 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 Claimants was not adopted at the time they were sworn- in. The Claimants took their Oath of office on 15/04/2019 before the adoption of the approval of their appointment by the 3^rd Respondent.

That the office to which they were appointed became vacant since January 2019 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 Claimants.

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

Whether the Claimants were duly confirmed by the 3^rd respondent to warrant them taking the Oath of Office and assuming duty as they did.
Whether the pronouncement of the 1^st Respondent in his broadcast amounted to removal/dissolution of Claimants to warrant compliance with Section 201(1) and (2) of the constitution of the Federal Republic of Nigeria (as amended).

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 Claimants was done long after they have taken their 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 claimants having failed to comply with the rule requiring the adoption of their appointment before proceeding to take Oath and resume duty have shot themselves and the consequences is that both the appointment letters 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 Claimants and not dissolution or removal to warrant the compliance with the provision of Section 201 ( 1) and (2) of the 1999 constitution of the Federal Republic of Nigeria (as amended) that the 1^st Respondent is only required to comply with Section 201 (1) of the Constitution in removing the Claimants not suspending them as he did.

CLAIMANTS FURTHER AND BETTER AFFIDAVIT IN RESPONSE TO 3^RD RESPONDENT’S COUNTER AFFIDAVIT

In a 5 paragraph further and better affidavit in response to the counter affidavit of 3^rd respondent, the claimants depose that the issue of adoption or any decision/resolution at the next sitting of the House is an internal affair of the 3^rd Respondent. That it is also not provided in the rules of the 3^rd Respondent. That the constitution of the Federal Republic of Nigeria 1999 as Amended provided for the confirmation of our appointment by the 3^rd Respondent and this was done before our appointment.

The 3^rd Respondent’s Votes of proceedings No 106 held on the 9^th April, 2019 wherein claimants’ nominations were confirmed was attached as Exhibit TH. 1.

Submitting for the claimants, learned counsel argued that the provision of Section 198 of the Constitution of the Federal Republic of Nigeria as Amended requires only confirmation of the appointments of the claimants by the 3^rd respondent. The mode/manner the said confirmation is to be done cannot be imputed into the constitution.

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

QUESTIONS FOR DETERMINATION

The claimant formulated 3 questions for determination as follows;

Whether from the combined reading of sections 198, 199(1) (C),201(1) & (2) of the 1999 constitution of Federal Republic of Nigeria (As amended) the Claimants who have been appointed as Chairman and Commissioners respectively of the Adamawa State Civil Service Commission by the Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, are not entitled to a guaranteed tenure of five years; removable only by reasons of inability to discharge the functions of their office or by misconduct?
Whether from the clear Provisions of sections l99 (1)(c) and 201(1) of the constitution of the Federal Republic of Nigeria1999(as Amended), the Respondents can validly suspend, dissolve, remove or terminate the appointments of the Claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their office.
Whether the purported suspension and or dissolution of the appointments of the Claimants as Chairman and Commissioners of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their office is not ultra vires the power of the 1^st Respondent and therefore, unconstitutional, null and void and of no effect whatsoever?

COURT’S DECISION.

The contention of the claimant is that their appointment was in accordance with the provisions of the Constitution and they cannot be suspended or removed otherwise than in accordance with the Constitution. The respondents have contended that the claimants were not removed but suspended so no need for compliance with section 201 of the Constitution.

ISSUE1: On the implication of sections 198, 199(1) (C), 201(1) & (2) of the 1999 constitution of Federal Republic of Nigeria (As amended) on the tenure and discipline of the claimants. This issue also covers issue 1 of the 1^st and 2^nd respondents as well as issue 2 of the 3^rd respondent.

The appointment, tenure, qualification and discipline of the claimants are as provided for in sections 197,198, 199,200 and 201 of the Constitution of the Federal Republic of Nigeria 1999 as amended. These sections provide as follows;

State Commissions

(1) There shall be established for each State of the Federation the following bodies, namely—

(a) State Civil Service Commission;

(b) State Independent Electoral Commission; and

Appointment of chairman and members

Except in the case of ex-officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State.

Tenure of office of members

(1) A person who is a member of any of the bodies established as aforesaid shall, subject to the provisions of this Part, remain a member thereof—

(a) in the case of an ex-officio member, whilst he holds the office by virtue of which he is a member of the body;

(b) in the case of a person who is a member by virtue of his having previously held an office, for the duration of his life; and

(c) in the case of a person who is a member otherwise than as an ex-officio member or otherwise than by virtue of his having previously held an office, for a period of five years from the date of his appointment.

(2) A member of any of the bodies shall cease to be a member if any circumstances arise that, if he were not a member of the body, would cause him to be disqualified for appointment as such a member.

Qualification for membership

(1) No person shall be qualified for appointment as a member of any of the bodies aforesaid if—

(a) he is not qualified or if he is disqualified for election as a member of a House of Assembly;

(b) he has within the preceding ten years been removed as a member of any of the bodies or as the holder of any other office on the ground of misconduct.

(2) Any person employed in the public service of a State shall not be disqualified for appointment as Chairman or member of any of such bodies, provided that where such a person has been duly appointed, he shall on his appointment be deemed to have resigned his former office as from the date of the appointment.

(3) No person shall be qualified for appointment to any of the bodies aforesaid, if, having previously been appointed as a member otherwise than as an ex-officio member of that body, he has been re-appointed for a further term as a member of the same body.

Removal of members

(1) Any person holding any of the offices to which this section applies, shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.

(2) This section applies to the offices of the Chairmen and members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.

The procedure for the removal of the claimants as provided for in section 201 is not contested by the respondents. Their contention is that the claimants were not removed from office but suspended so section 201 of the Constitution 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.

The application of Section 11(1) of the Interpretation Act to Governor’s power to discipline an appointee under Section 197 of the Constitution.

Section 11 of the interpretation Act provides as follows;

Appointment

(1) Where an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes—

(a) power to appoint a person by name or to appoint the holder from time to time of a particular office;

(b) power to remove or suspend him;

(c) power, exercisable in the manner and subject to the limitations and conditions (if any) applicable to the power to appoint—

(i) to reappoint or reinstate him;

(ii) to appoint a person to act in his place, either generally or in regard to specified functions, during such time as is considered expedient by the authority in whom the power of appointment in question is vested.

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 201 of the constitution but that the section is not applicable herein because the claimants were 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 198 of the constitution 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 claimants subject to confirmation by a resolution of the House of Assembly of the State of Adamawa State as required by Section 198 of the Constitution. Whether the claimants were removed or suspended is therefore immaterial as the same rule applies.

In any event, I have carefully read exhibit A, the Radio and Television text of the speech of the 1^st respondent, the claimants are suspended in paragraph 3 thus;

”similarly, all appointments made into the State Judicial Service Commission ,Civil Service Commission, Planning Commission and Board of Adamawa State Health Insurance Scheme, chairman and members of the Jimeta Ultra-Modern Market Board are hereby suspended”.

The claimants are also dissolved in paragraph 5 in the following words;

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

Any exercise of any power by the 1^st respondent, whether to appoint, remove or suspend the persons appointed pursuant to section 197 of the Constitution, without confirmation by a resolution of the House of Assembly of the State is null and void; so is the suspension and dissolution of the claimants herein.

ISSUES 2 and 3; Whether the Claimants were validly appointed and confirmed?

This question covers issues 2 and 3 of the claimants and 1^st and 2^nd respondents as well as issue 1 of the 3^rd respondent which gives rise to 3 questions as follows;

Whether the Claimants were duly confirmed by the 3^rd respondent.
Whether the 1^st and 3^rd Claimants are eligible for reappointment as Members of the Adamawa State Civil Service Commission.
Whether the appointment of the claimants lumped together with the 1^st and 3^rd claimants are not altogether tainted with illegality and therefor null and void.

The legality of the removal and or suspension of the claimants have already been answered in issue 1. What is left is the 3 questions necessitated by the arguments of the respondents.

Whether the Claimants were duly confirmed by the 3^rd respondent.

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

Section 198 of the constitution provides as follows;

Appointment of chairman and members

(underlining supplied)

The facts before the Court is that the claimants names were nominated and sent to the 3^rd respondent for it confirmation in line with section 198 of the Constitution. The 3^rd respondent sat, approved the said appointments 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 claimants’ nominations were confirmed was attached as Exhibit TH. 1. Page 2 of the said proceedings reads as follows;

(a). Appointment of Chairman and Members of Adamawa State Civil 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 S.B Hamid, Mohammed Abdu Mayas, Amina Kabiru, Aliyu Sadiq and Shehu Audu be confirmed as Chairman and Members of the Adamaws state Civil 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 claimants 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 B) 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 CIVIL 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 Civil Service Commission

(i) S.B.Hamid ……………… Chairman

(ii) Mohammed Abdu Mayas ………………… Commissioner I

(iii) Amina Kabiru ………………… Commissioner II

(iv) Aliyu Sadiq ………………… Commissioner III

(v) Shehu Audu ………………… 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 B completes the requirement of confirmation by resolution as required by Section 198 of the Constitution of the Federal Republic of Nigeria,1999 as amended.

Most importantly, the provision of section 198 only requires confirmation by 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 section 198 of the Constitution and the Governor was entitled to swear in the claimants.

I accordingly find and hold that the appointments of the Claimants were duly confirmed by the 3^rd respondent.

Whether the 1^st and 3^rd Claimants are eligible for reappointment and whether the appointments of the claimants are not altogether tainted with illegality and therefor null and void.

This argument was brought up by the respondents simply to justify the action of the 1^st respondent in suspending the claimants wherein the respondents submitted “The suspension is to allow the 1^st Respondent to conduct unbiased investigation of the process leading to the appointment of the Claimants”.

As earlier noted in this judgment, I have carefully read exhibit A, the Radio and Television text of the speech of the 1^st respondent, the claimants are suspended in paragraph 3 and also dissolved in paragraph 5. The above reasons for their suspension or dissolution as contended by counsel are not contained in the speech. Since the appointments of the claimants were made in April 2019, the only reason is in this statement by the 1^st respondent thus’

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

“Public interest” cannot and does not constitute a ground for suspension or removal of appointees such as the claimants.

The complaint about process of appointment in the speech referred to recruitments in the following words;

“Also, all last minute recruitments done on or after 28^th March 2019 are through mere waiver without observing the laid down procedure such as federal character are hereby suspended. A committee will be set up to thoroughly review the hasty recruitment and decide on the need to conduct a proper exercise that will be open to all eligible citizens including those affected by the suspension”.

Recruitments in the speech (exhibit A) refers to newly employed civil servants and cannot refer to appointments, not in the scheme of the speech of the 1^st respondent as in exhibit A. The claimants were appointed, not recruited.

I find that the reasons sought to be relied upon by counsels to justify the suspension or dissolution of the claimants do not flow from the speech of the 1^st respondent. They do not avail the respondents. The claimants were both suspended and dissolved for no disclosed reason.

Having held that the 1^st respondent cannot remove or suspend the claimants without a confirmation by resolution of the 3^rd respondent, and that the appointments of the claimants was properly confirmed by the 3^rd respondent, whether the appointments of the claimants was in contravention of any provision of the law and needs to be investigated, (which is not the case herein) will not confer the power on the 1^st respondent to suspend the claimants without the confirmatory resolution of the 3^rd respondent and therefore no alleged wrong can justify an unconstitutional act.

COURT ORDER

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

A Declaration that the claimants as Chairman and Commissioners or members respective1y of the Adamawa State Civil Service Commission, having been so appointed by the then Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, are entitled to a guaranteed tenure of five years removable only by reasons of inability to discharge the functions of their offices or for misconduct.
A Declaration that by the clear provisions of sections 199(1-) ( c)&. 201(1) of the constitution of the Federal Republic of Nigeria 1999 (as Amended), the Respondents cannot validly suspend, dissolve, remove or terminate the appointments of the Claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their office.
Declaration that the purported dissolution and or suspension of the appointments of the Claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission without any allegation of misconduct or for inability to discharge the functions of their 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 appointments of the claimants as Chairman and Commissioners or members of Adamawa State Civil Service Commission as null and void of no effect
An order that the claimants are entitled to their salaries and allowances from 15/4/2019 to 14/4/2024 unless otherwise removed for inability to discharge the functions of their offices or for misconduct as prescribed by the Constitution of the Federal Republic of Nigeria, 1999 as amended.
AN order of perpetual injunction restraining respondents jointly and severally from interfering with the claimant’s performance of the duties of their offices.

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

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HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, YOLA.