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National Industrial Court

DR. EMIBRA EFIRIANDI AGBEOTU VS THE EXECUTIVE GOVERNOR, DELTA

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

 

DATE: JULY 20, 2018

SUIT NO: NICN/YEN/68/2017

 

BETWEEN

  1. EMIBRA EFIRIANDI AGBEOTU

CLAIMANTS

AND

  1. THE EXECUTIVE GOVERNOR, DELTA STATE OF NIGERIA
  2. THE DELTA STATE HOUSE OF ASSEMBLY
  3. THE DELTA STATE INDEPENDENT

ELECTORAL COMMISSION (DSIEC)

  1. THE HONOURABLE ATTORNEY-GENERAL OF DELTA STATE.

DEFENDANTS

REPRESENTATIONS

Mr. D.O Abah Esq appearing with O.P Enwonode Esq for the Claimant.

Mr. John Okoriko Esq appearing with P.K Ohwovoriole Esq for the Defendants.

JUDGMENT

This suit was commenced by an Originating Summons dated 24th day of October, 2017, and filed on the 26th day of October, 2017. The Originating Summons is accompanied by a 21 paragraphs affidavit deposed to by the applicant himself. Attached with this application are 9 exhibits and a written address. Through the Originating Summons, the Claimant is seeking the determination of the following reliefs:

  1. A DECLARATION that the Claimant’s employment or appointment into the 3rd Defendant by the 1st Defendant is governed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Delta State Independent Electoral Commission Law, 2012.

  1. A DECLARATION that the tenure or appointment of the Claimant into the Commission is for a tenure of 5 years from July 2013 when the Claimant was appointed to June, 2018.

  1. A DECLARATION that the purported dissolution of the 3rd Defendant commission by the 2nd Defendant upon which the 1st Defendant through the office of the Secretary to the State Government wrote to convey the termination or disengagement of the Claimant’s appointment as a member of the 3rd Defendant is ultra vires, a violent breach of section 201 (1), (2) of the constitution of the Federal Republic of Nigeria 1999 (as amended) and section 7 of the Delta State Independent Electoral Commission Law, 2012.

  1. A DECLARATION that the purported termination of the Claimant’s appointment or disengagement by the 1st and 2nd Defendants vide letter dated 14th September, 2017 as a member of the 3rd Defendant Commission is unlawful, ultra vires, null, void and of no effect whatsoever.

  1. AN ORDER setting aside the purported termination, determination of the appointment or disengagement of the claimant purportedly made pursuant to the dissolution of the 3rd Defendant by the 2nd Defendant on 31/8/2017.

  1. A DECLARATION that the Claimant is entitled to all his remuneration, including his salaries and allowances for the remainder of the period of his tenure as a member of the 3rd Defendant including his salaries and allowances of his political aide.

  1. AN ORDER directing the 1st and 3rd Defendants to pay and continue to pay to the Claimant his monthly salaries and allowances, including that of his political aide to which he is entitled till the expiration of his tenure with the 3rd Defendant.

  1. AN ORDER restraining the Defendants from treating the Claimant’s appointment as being at an end by virtue of the purported dissolution of the 3rd Defendant Commission by the 2nd Defendant on 31/8/2017.

 

  1. A DECLARATION that the 3rd Defendant Commission as constituted with the Claimant as a member is the extant Commission.

  1.  A DECLARATION that the purported constitution of a new Delta State Independent Electoral Commission in September, 2017 upon the purported dissolution of the Commission of the Claimant is null and void.

  1.  AN ORDER directing the 1st and 3rd Defendants to pay to the Claimant the sum of N12, 474, 630. 00 (Twelve Million, Four Hundred and Seventy Four Thousand, Six Hundred and Thirty Naira) as salaries, allowances and severance gratuity allowance for the remaining 11 months from September, 2017 to July, 2018.

  1.  AN ORDER directing the 1st and 3rd Defendants to pay the sum of N6, 589, 883. 91 (Six Million, Five Hundred and Eighty Nine Thousand, Eight Hundred and Eighty Three Naira and Ninety One Kobo) as salaries, allowances, severance and gratuity for the Claimant’s political aide for the remaining 11 months from September 2017 to July, 2018.

  1.  The sum of N100, 000, 000. 00 (One Hundred Million Naira) being general damages suffered by the Claimant for the abrupt announcement and purported termination, determination or disengagement as  a member of the 3rd Defendant for no just cause and the attendant odium associated with it.

The Claimant also seeks the determination of the following questions:

  1. Whether the Claimant is not an employee of the 3rd Defendant governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Delta State Independent Electoral Commission Law of Delta State, 2012.

  1. Whether by the Delta State Independent Electoral Commission Law the Defendants’ employment is not for a duration of 5 years from August 2013 to July, 2018?

  1. Whether by virtue of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Delta State Independent Electoral Commission Law, 2012, the 2nd Defendant has the authority or power to dissolve the Commission of the 3rd Defendant on which the Claimant sits as a member?

  1. Whether by a resolution of the 2nd Defendant made on Thursday the 31st day of August, 2017 the Commission of the 3rd Defendant on which the Claimant sits as a member was actually dissolved?

  1. Whether the Claimant’s employment or appointment as a member of the 3rd Defendant’s Commission can be terminated or determined without compliance with Section 201(1), (2) of the Constitution of the Federal of Nigeria, 1999 (as amended) and sections 7 (1) and 11 of the Delta State Independent Electoral Commission Law, 2012?

  1. Whether the employment of the Claimant in the circumstances is not still subsisting and thus entitled to all his salaries and allowances for the duration and remainder of his tenure as a member of the Commission of the 3rd Defendant?

  1. Whether the letter from 1st Defendant through the office of the Secretary to the State Government conveying the purported dissolution of the 3rd Defendant dated 4th September, 2017 is not ultra vires, null and void?

  1. Whether having regards to the facts and circumstances of this case, the purported appointment of a new Commission to replace that which the Claimant sat on as a member is not ultra vires, unlawful, null and void and of no effect whatsoever?

  1. Whether the Claimant is not entitled to damages for unlawful termination or determination of his appointment as a member of the 3rd Defendant and the odium associated with the manner of disengagement?

In opposition to the Originating Summons, the Defendants entered Conditional Appearance on the 5th December, 2017. In opposing this application, the Defendants filed a 7 paragraphs Counter Affidavit dated 7th February, 2018 and a Written Address where the Defendants formulated 9 (nine) issues for determination. The Claimants also filed a reply on points of law dated 28th February, 2018 and filed on the same date. And also filed a five (5) paragraphs further and better affidavit in opposition to the Defendant’s Counter Affidavit filed on the 7th February, 2018.

THE DEFENDANT’S PRELIMINARY OBJECTIONS

 

The Defendants filed two Preliminary Objections. One filed on the 22nd day of January, 2018 filed by Mr. John Okoriko (Counsel to the Defendants) and another one filed by Mr. I.S Maidoh (Counsel to the 3rd Defendant) after being retained by the 3rd Defendant. I will first of all start with the one filed on the 22nd day of January, 2018.

MOTION ON NOTICE FILED BY THE DEFENDANTS ON 22ND DAY OF JANUARY, 2018

 By a Motion on Notice dated and filed on the 22nd day of January, 2018, the Defendants/Applicants are seeking for an order of court to strike out/dismiss this Suit NICN/YEN/68/2017, and for such other orders or other as this Honourable court may deem fit to make in the circumstances of this case.

The grounds upon which this application is brought are as follows:

  1. The suit which is commenced by way of Originating Summons is not accompanied by a competent affidavit as required by law.

  1. The affidavit accompanying the Originating Summons, which was deposed by the Claimant, was deposed to in utter violation of the provisions of the 1st Schedule to the Oaths Act of the Federal Republic of Nigeria, 2004 as it does not contain swearing to God or a revered person or affirmation.

iii.              This suit is bereft of any competent affidavit in support of the Originating Summons, therefore, constitutes a gross abuse of the process of this Honourable court as it is not initiated by due process of law, by reason of the fact that it contravenes the provisions of Order 3 Rule 17 (1) (a) of the National Industrial Court of Civil Procedure Rules, 2017 and other enabling laws in that behalf.

  1. The action is not initiated by due process of law, having regard to the fact that the Originating Summons is not specially endorsed as required by the provisions of section 96, 97, and 99 of the Sheriffs and Civil Processes Act.

The Motion was supported by a 15 paragraph affidavit deposed to by Mr. Peter Emedo, a litigation clerk in the law firm of John Okoriko & Co., solicitors representing the Defendants/Applicants.

In reaction to the application, Claimant/Respondent Counsel, Fedude Zimughan Esq., filed a written address in opposition to the Defendants/Applicants’ Preliminary Objection through a Motion for Extension of Time and accompanying processes. In view of the non-opposition of Claimant/Respondent’s Motion for extension of time within which to file his reply to the Defendants/Applicants’ Preliminary Objection, the application was granted as prayed.

I have read through the Defendants/Applicants’ Motion on Notice to dismiss this suit for lack of jurisdiction and the accompanying written address and the Applicant presented 4 issues for determination and I will dwell on these 4 issues in seriatim.

The 1st issue for determination formulated by the Defendants/Applicants is whether this suit as presently constituted is initiated by due process of law to vest this Honourable Court with the requisite jurisdiction to entertain and adjudicate upon it, having regard to the fact that there is no competent affidavit in support of the Originating Summons in violation of the provisions of Order 3 rule 17 of the National Industrial Court Civil Procedure Rules, 2017 and other enabling laws in that behalf.

Basically, the case of the Defendants/Applicants on this issue for determination is that the affidavit of the Claimant/Respondent accompanying the Originating Summons is manifestly incompetent as it does not follow the sample or format of an affidavit in the 1st Schedule to the Oaths Act of the Federal Republic of Nigeria, 2004, as made pursuant to section 13 of the Oaths Act. Counsel contends that the affidavit deposed by the Claimant does not include swearing to God or a revered person or thing or an affirmation. Counsel made references to the case of ONUJABE VS IDRIS (2012) 2 NWLR (PT. 1284) PAGE 285 AT PAGES 306 PARA. E, 305 PARA. H, RATIO 6 where the court held that:

          “A defective affidavit is any affidavit that fails to meet the mandatory       provisions of the Evidence Act as to the form or contents thereof or is     offensive to any other statute such as the Oaths Act or any other law. A document such as an affidavit must be clear and unambiguous on when    and where attestation was administered.”

 

Counsel to the Defendants/Applicants therefore urged this Honourable court to resolve this issue in favour of the Defendants/Applicants.

In opposition to this issue for determination, Counsel to the Claimant/Respondent contended that the submission of Learned Counsel to the Defendants/Applicants is misplaced and does not represent the true position of the law. He also contended that the authorities relied upon by Counsel to the Defendants/Applicants are not applicable to the instant case.

Counsel finally submitted on this issue that the law is well settled that an affidavit must not comply specifically with the words stated in the 1st Schedule to the Oaths Act, 2004 and he referred to section 113 of the Evidence Act, 2011.

I have examined the submissions of the Defendants/Applicants and the supporting processes on this issue. The response of Learned Counsel to the Claimant/Respondent is also examined and analysed, it is my considered view that the law is well settled that an affidavit must not comply specifically with the words as stated in the 1st Schedule to the Oaths Act, 2004. Section 113 of the Evidence Act provides that:

          “The court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if the court is satisfied that it has       been sworn before a person duly authorized.”

 

It is also provided in section 4 (2) (b) of the Oaths Act which provides that:

          “(2) No irregularity in the form in which an oath or affirmation is                 administered or taken shall

(a)      Invalidate the performance of official duties; or

(b)      Invalidate proceedings in any court.”

From the provisions of section 113 of the Evidence Act and in Section 4 (2) (b) of the Oaths Act, I am minded to accede to the prayers of the Claimant/Respondent as the above provisions of the law is a saving grace in the rules and to ensure that matters are not for some technical reasons struck out or dismissed.

That being the position of the law and in view of the fact that the affidavit was duly sworn to before a Commissioner for Oaths, I hold that the said affidavit is competent in consideration of the issues in controversy before the parties. I therefore hold that the affidavit in support of the Originating Summons is proper and competent in the eyes of the law.

The objection therefore raised by the Defendant/Applicant thereto is misconceived and is therefore overruled.

On the second issue for determination whether the Claimant/Respondent’s action as presently constituted is competent, having regard to the fact that the Claimant/Respondent , who did not institute this suit in a representative capacity, is making a case and claiming reliefs for and on behalf of one Hon. Magbemi Jerusalem who is not a party to this suit.

It is the contention of Counsel to the Defendant/Applicant that the Claimant/Respondent is claiming reliefs for and on behalf of one Hon. Magbemi Jerusalem, who is not a party to the suit. Counsel to the Defendant further argue that there is nothing to show on the face of the Originating Summons or other accompanying processes filed by the Claimant/Respondent that he is instituting this suit in a representative capacity. Counsel then referred to Order 13 Rule 11 (5) (a) (b) of the National Industrial Court of Nigeria Civil Procedure Rules, 2017.

Counsel therefore urged this Honourable court to hold that failure of the Claimant/Respondent to seek and obtain the leave of this Honourable court by way of an application to institute this action in a representative capacity has rendered this action incompetent and divested this Honourable court of the requisite jurisdiction to entertain it.

Counsel to the Claimant/Respondent on the other hand, while opposing this issue in contention, submitted that there is nothing either in the reliefs claimed or in the affidavit in support of the Originating Summons that suggest that the action is instituted in a representative capacity. He then submitted that the action is a personal action and that Claimant/Respondent did not institute the action in a representative capacity, and therefore, ought to seek the leave of court.

I have read through the arguments of both parties as it relates to the present issue for determination. What I understand is that the Claimant only made such claims on behalf of Hon. Magbemi Jerusalem due to the fact that the Hon. Magbemi’s appointment is tied to his own appointment as averred in paragraphs 10 of the Supporting Affidavit. It is my view that the Claimant/Respondent departed from the provisions of Order 13 Rule 11(5) (a) (b) of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 when he makes a case and claims reliefs for and on behalf of Hon. Magbemi Jerusalem who is not a party to this suit; which I will make holding on the priority or otherwise in the substantive suit.

However, it is my firm view that the present suit before this Honourable court is a personal action and the suit is not filed in a representative capacity. Therefore, I hold that Claimant/Respondent has no need to seek and obtain the leave of this Honourable court to commence this action.

On the Third Issue for determination by the Defendants/Applicants where Counsel to the Defendants/Applicants contend that whether the suit as is presently constituted, is initiated by due process of law to vest this Honourable court with the requisite jurisdiction to entertain and adjudicate over it, having regard that  the Claimant/Respondent did not first seek and obtain the leave of this Honourable court to issue and serve the Originating Summons and all other court processes filed in this suit on the Defendants/Applicants out of Yenagoa in Bayelsa State as prescribed by the provisions of sections 96, 97, 98 and 99 of the Sheriffs and Civil Processes Act and Order 8 Rule 3 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017.

I have duly considered the Preliminary Objection of the Defendant/Applicant on this issue and I have equally given consideration to the reply thereto by the Claimant/Respondent through his Counsel on this issue. It is my firm view that the National Industrial Court of Nigeria Civil Procedure Rules 2017 which regulates the conduct of proceedings in the National Industrial Court is clear and unambiguous in this issue. Order 7 Rule 15 provides that:

          15 (1) “The National Industrial Court has one jurisdiction throughout          the Federal Republic of Nigeria; and is only divided by the President         of the Court into Judicial Divisions or Registries for adjudicatory and   administrative convenience.

          (2) All originating processes or other court processes filed by any party           before the court shall be served on any party in any part of the   federation without leave of court.”

 

Therefore, I disagree with the arguments of Learned Counsel to the Defendants/Applicants when he averred that the suit is instituted in the National Industrial Court of Nigeria, Yenagoa Judicial Division, Bayelsa State while the Defendants/Applicants are resident in Asaba, Delta State, a place outside the territorial jurisdiction of National Industrial Court of Nigeria, Yenagoa Judicial Division.

I therefore hold that Claimant/Respondent need not seek the leave of this Honourable court to serve the Originating Processes as provided in Order 7 rule 15 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017. The issue therefore raised by the Defendant/Applicant thereto is misconceived and is therefore overruled.

On the Fourth Issue for determination by the Defendants/Applicants, the Learned Counsel argued whether in this suit, where the Defendants/Applicants are resident in Delta State which is a place completely outside the territorial jurisdiction of this Honourable court is initiated by due process of law to vest this Honourable court with the requisite jurisdiction to entertain and adjudicate over it; having regard to the fact that the Originating Summons is not specially endorsed and marked “CONCURRENT” as required by the provisions of section 96, 97 and 99 of the Sheriffs and Civil Processes Act and other enabling laws.

It is my considered view that this issue for determination is in pari materia with the Defendants/Claimants third issue for determination which is cured by Order 7 Rule 15 of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 and is hereby overruled.

It is elementary principle that the jurisdiction of the court is determined by the claim on the Writ of Summons of the Claimant. On a cursory perusal at the Claimant’s Statement of Claim in the instant case, there is nothing to show that the court lacks jurisdiction to hear the claim before it. The law is trite that where the issue of jurisdiction is raised in a suit, the court is to look at the Statement of Claim to see if the Claimant has the requisite legal standing to sue. Ordinarily, it is the claim and not the defence which is to be looked at to determine the court’s jurisdiction. See ANASON IBETO INT. LTD. VS. VIMEX IMPORTS-EXPORTS (2001) 10 NWLR (PT. 720) 224 AT 231.

 

This was also the position in ALHAJI WADA NAS VS. SENATOR (CHIEF) ABRAHAM ADESANYA (2003) 2 NWLR (PT. 803) C.A PAGE 97 AT PAGE 106, PARAS. F-G, RATIO 2 when the court held that:

          “It is the claim of the plaintiff which determines the jurisdiction of a court           entertaining same. In other words, it is the Statement of Claim alone and           nothing else, such as the evidence led, that the court must direct its search         light to determine whether it has jurisdiction to entertain the suit or not.”

See also section 254 C (1) (d) of the constitution of the Federal Republic of Nigeria 1999 (as amended).

Having considered all the grounds relied upon in the Statement of Claim and the affidavit relied upon by the Claimant/Respondent, I have come to the conclusion that this Honourable court has the requisite jurisdiction to hear this case to its logical conclusion. Accordingly, the Preliminary Objection is incompetent before me and is accordingly struck out. I so rule.

On the other Motion on Notice dated 5th February, 2018 and filed same day, the 3rd Defendant/Applicant is seeking for an Order striking out this suit for lack of jurisdiction.

The grounds upon this application is brought are as follows:

  1. The questions raised by the Claimant/Respondent for adjudication border on matters of political appointment as distinct from labour and trade disputes.

  1. The questions raised by the Claimant/Respondent do not fall within the scope of civil matters which this Honourable court is vested with jurisdiction to adjudicate upon.

  1. This Honourable court lacks the jurisdiction to adjudicate on this matter.

A written address in support of the Motion on Notice was filed along by Learned Counsel to the 3rd Defendant/Applicant, Mr. I.S. Maidoh, whilst the Learned Counsel to the Claimant equally filed a Counter-Affidavit in opposition to the 3rd Defendant/Applicant’s Motion on Notice and accompanying processes.

Counsel to the 3rd Defendant/Applicant raised a lone issue for determination as to: WHETHER THE QUESTIONS RAISED FOR ADJUDICATION BY THE CLAIMANT/RESPONDENT FALL WITHIN THE SCOPE OF CIVIL MATTERS WHICH THIS HONOURABLE COURT IS VESTED WITH JURISDICTION TO ADJUDICATE UPON?

 

Counsel argued that the law is trite that a court is said to be competent when:

  1. It is properly constituted as regards numbers and qualifications of the member of the bench, and no member is disqualified for one reason or another; and

  1. The subject matter of the case is within its jurisdiction, and there is no feature in the said case which prevents the court from exercising its jurisdiction; and

  1. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Cited the case of MADUKOLU & ORS VS. NKEMDILIM (1962) LPELR – 24023 (SC).

 

Counsel to the 3rd Defendant/Applicant further argues that the subject matter jurisdiction of this Honourable court is specified by section 254C of the Third Alteration to the 1999 Constitution (as amended) and by the said provisions, the National Industrial Court has exclusive jurisdiction in relation to labour and trade disputes. Counsel then refers this Honourable court to the case of SKYE BANK VS IWU (2017) LPELR – 42595 (SC).

Counsel to the 3rd Defendant/Applicant further submitted that a perusal of the Claimant/Respondent’s Originating Motion reveals that the subject matter as contained therein is strictly on political appointment dispute and neither on labour or trade dispute and finally submitted that this Honourable court is not vested with the jurisdiction to adjudicate on matters outside trade and labour disputes and as such urged this court to strike out this suit for lack of jurisdiction.

In opposition to this application Learned Counsel to the Claimant/Respondent on his part filed a Counter Affidavit and a written address in support where he argued that this Honourable court has jurisdiction to hear and determine this action by virtue of the provisions of section 254(C), 1 (a), (b) and (k) of the Constitution of the Federal Republic of Nigeria, (1999) as amended which confers exclusive jurisdiction on the National Industrial Court to entertain this action.

It’s my considered view that the National Industrial Court derives its jurisdiction from the Constitution, being a superior court of record by section 254 (1) of the Constitution which provides that:

“Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters.

  1. Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith;

  1. Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the acts or laws;

  1. Relating to or connected with disputes arising from payment or non    payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;”

It is also my ardent view that the cause of action in this matter falls within the provisions of section 254C (1) (a), (b) and (k) of the Constitution and consequently within the exclusive jurisdiction of the National Industrial Court. See the decision in the case of N.U.T NIGER STATE VS C.O.S.S.T., NIGER STATE (2012) (PT. 1307) 89.

I have duly considered the Motion on Notice filed by the 3rd Defendant/Applicant and I have equally given consideration to the Counter-Affidavit thereto filed by the Claimant/Respondent through his Counsel. Without doubt, the Motion on Notice by the 3rd Defendant/Applicant is predicated on lack of jurisdiction of this Honourable court.

Jurisdiction is a priceless commodity in the judicial process. It is the fulcrum, centre pin, or the main pillar upon which the decision of any court stands and around which the validity of any decision of any court stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED VS. ISAIAH (2001) 5 SC (PT. 11) 1.

 

The law is trite that where the issue of jurisdiction is raised in a suit, the court is to look at the Statement of Claim to see if the Claimant has the requisite legal standing to sue. Ordinarily, it is the claim and not the defence which is to be looked at to determine the court’s jurisdiction. See ANASON IBETO INT. LTD. VS VIMEX IMPORTS- EXPORTS (2001) 10 NWLR (PT. 720) 224 AT 231.

 

I agree with the Claimant/Respondent that this falls within the provisions of section 254C of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and within the jurisdiction of the National Industrial Court and this Honourable court has the requisite jurisdiction to hear this case to its logical conclusion. Accordingly, this Motion on Notice is incompetent before me and is accordingly struck out.

The facts of the instant case are that the Claimant filed an Originating Summons at the National Industrial Court in Yenagoa seeking the reliefs listed as reliefs 1 to 13 and for the determination of the questions listed as question 1 to 9 in the Motion paper. The Defendants filed a Counter Affidavit of 6 paragraphs and the accompanying processes.

The Claimant claims are as follows:

  1. A DECLARATION that the Claimant’s employment or appointment into the 3rd Defendant by the 1st Defendant is governed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Delta State Independent Electoral Commission Law, 2012.

  1. A DECLARATION that the tenure or appointment of the Claimant into the commission is for a tenure of 5 years from July 2013 when the Claimant was appointed to June, 2018.

  1. A DECLARATION that the purported dissolution of the 3rd Defendant Commission by the 2nd Defendant upon which the 1st Defendant through the office of the Secretary to the State Government wrote to convey the termination or disengagement of the Claimant’s appointment as a member of the 3rd Defendant is ultra vires, a violent breach of section 201 (1), (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 7 (1) of the Delta State Independent Electoral Commission Law, 2012.

  1. A DECLARATION that the purported termination of the Claimant’s appointment or disengagement by the 1st and 2nd Defendants vide a letter dated 14th September, 2017 as a member of the 3rd Defendant Commission is unlawful, ultra vires, null and void and of no effect whatsoever.

  1. AN ORDER setting aside the purported termination, determination of the appointment or disengagement of the Claimant purportedly made pursuant to the dissolution of the 3rd Defendant by the 2nd Defendant on 31/8/2017.

  1. A DECLARATION that the Claimant is entitled to all his remuneration, including his salaries and allowances for the remainder of the period of his tenure as a member of the 3rd Defendant including his salaries and allowances of his political aide.

  1. AN ORDER directing the 1st and 3rd Defendants to pay and continue to pay to the Claimant his monthly salaries and allowances including that of his political aide to which he is entitled till the expiration of his tenure with the 3rd Defendant.

  1. AN ORDER restraining the Defendants from treating the Claimant’s appointment as being at an end by virtue of the purported dissolution of the 3rd Defendant Commission by the 2nd Defendant on 31/8/2017.

  1. A DECLARATION that the 3rd Defendant Commission as constituted with the Claimant as a member is the extant commission.

  1.  A DECLARATION that the purported constitution of a new the Delta State Independent Electoral Commission in September, 2017 upon the purported dissolution of the commission of the Claimant is null and void.

  1.  AN ORDER directing the 1st and 3rd Defendants to pay to the Claimant the sum of N12,474,630.00 (Twelve Million, Four Hundred and Seventy Four Thousand, Six Hundred and Thirty Naira) as salaries, allowances and severance gratuity allowance for the remaining 11 months from September 2017 to July 2018.

  1. AN ORDER directing the 1st Defendant to pay the sum of N6,589, 883 (Six Million, Five Hundred and Eighty Nine Thousand, Eight Hundred and Eighty Three Naira and Ninety One Kobo) as salaries, allowances, severance and gratuity for the remaining 11 months from September, 2017 to July 2018.

  1.  The sum of N100,00,000.00 (One Hundred Million Naira) being general damages suffered by the Claimant for the abrupt announcement and purported termination, determination or disengagement as a member of the 3rd Defendant for no just cause and the attendant odium associated with it.

The Defendants on their Counter Affidavit, denied many of the averments contained in the affidavit in support of the Claimant’s Originating Summons.

BRIEF STATEMENT OF FACT

 

The Claimant was appointed by the 1st Defendant on 24/7/2013 as a member of the 3rd Defendant vide Exhibit LOA 1 for a tenure of 5 years which will expire on 23/7/2018. The appointment of the Claimant was pursuant to sections (4) (1), 3 and 16 (1) of the Delta State Independent Electoral Commission Law of 2012 and was duly confirmed by a resolution of the 2nd Defendant.

On the 31/8/2017, by a resolution the 2nd Defendant announced the purported dissolution of the 3rd Defendant and by Exhibits LOA 3 and LOA 4 conveyed the purported dissolution to the 3rd Defendant and the Claimant respectively and this terminated the appointment of the Claimant, Hence this action. The questions for determination are as set out in the originating summons.

SUBMISSIONS OF THE CLAIMANT

In arguing questions 1 and 2 together, the Learned Counsel to the Claimant refers this court to paragraphs 2, 3 and 7 of the affidavit in support of the Originating Summons and Exhibits LOA1 which he said clearly provides that the appointment of the Claimant was with effect from 24/7/2013 for a tenure of five years that is up to 23/7/2018. Counsel referred this court to the provisions of section 6 (1) of the Delta State Independent Electoral Commission Law of 2012 which stipulated a tenure of five years for the chairman and members of the 3rd Defendant. Also referred to the provisions of section 199 (1) of the Constitution of the Federal Republic of Nigeria.

Furthermore, in arguing questions 3, 4, 5, 6 and 7 together the Learned Counsel to the Claimant refers this court to paragraphs 4, 5, 6, 14 and 15 of the affidavit in support of this application and section 197 (1), (b), 201(1), (2) of the 1999 Constitution of the FRN 1999 (as amended) and section 7 (1) of the DSIEC Law 2012 which categorically did not make any provision for the 2nd Defendant to dissolve the 3rd Defendant. And that what the 2nd Defendant did on 31/8/2017 amounted to a dissolution of the 3rd Defendant which is ultravires, since the 2nd Defendant did not have the authority to do so. That the events and proceedings of the 2nd Defendant on the 31/8/2017 was not a dissolution but rather a mere recommendation to the 1st Defendant to dissolve the 3rd Defendant, which the 1st Defendant has not done. Refers this court to Exhibit LOA2. And that section 7 (1) of the DSIEC, 2012 referred to in the proceedings of the 2nd Defendant only empowers the 1st Defendant to remove the chairman or member of the 3rd Defendant upon an address supported by two third majority of the 2nd Defendant on grounds of inability to discharge the functions of the office or for misconduct and for no other cause, which the Claimant has not been accused of any one of these misconduct. As such the appointment of the Claimant cannot be terminated or deemed to have been terminated by virtue of the dissolution of the 3rd Defendant as conveyed in Exhibits LOA3 and LOA4 by the Secretary to the Delta State Government. As such the appointment of the Claimant is still subsisting and he is entitled to all his salaries and allowances for the remainder of his tenure which will expire on 23/7/2018.

Also in arguing questions 8 and 9 together, Learned Counsel to the Claimant adopted all the arguments canvassed in arguing questions 1 to 7 and urged this court to hold that the 3rd Defendant not having been dissolved, the appointment of the Claimant still subsists. And that as to question 9 (nine) Counsel submit that the said purported termination of appointment or removal from public office as was purportedly done in this case and announced in both electronic and print media comes with some odium and stigma and had exposed the Claimant to the lowering of his credit. This is because the reasons for removal as provided by the law is for inability to perform the functions of the office or misconduct both of which reduced the Claimant’s credit and lowered his reputation in the estimation of reasonable members of the public which occasioned some damages. And urged this court to grants all the 13 reliefs in favour of the Claimant as contained in the Originating Summons.

THE DEFENDANT’S REPLY TO THE ORIGINATING SUMMONS

 

In opposing this application, the Defendants on 7th February, 2018 filed a Counter Affidavit of seven (7) paragraphs and twelve (12) sub-paragraphs deposed to by one Mr. Peter Emedo, a litigation clerk in the law firm of John Okoriko & Co., solicitors representing the 1st, 2nd and 4th Defendants. And a written address where the Defendants adopted all the nine issues formulated by the Claimant for determination.

In arguing issues 1 and 2 together Counsel to the Defendants submitted that the argument canvassed by Counsel to the Claimant on issues 1 and 2 in the written address is misplaced. That by section 7 (1) of the DSIEC law, Cap D24, Laws of Delta State, 2006 the Claimant shall only be removed by the Governor acting on an address supported by the two-thirds majority of the House of Assembly of the state praying that he be so removed for inability to discharge the function of his office or any other cause. That there was actually a resolution of the 2nd Defendant by which the 2nd Defendant requested and urged the 1st Defendant to dissolve the membership of the 3rd Defendant. That although the tenure of office of the Claimant might have been fixed for a period of five (5) years, the tenure of office is not absolute. It is also subject to the executive powers of the 1st Defendant exercisable under the combined provisions of section 201 (1) and (2) of the Constitution of the FRN 1999 as amended and section 7 (1) of the DSIEC Law of 2012. Thus, the 1st Defendant reserves the constitutional and statutory powers to appoint and dissolve the appointment of the Claimant for any cause or causes; including but not limited to, enhancing the electoral process in Delta State. And that this is irrespective of whether the Claimant has completed his tenure of office or not. And urged this court to so hold.

On the 3, 4, 5, 6 and 7 questions, it is the argument of the Defendants that from the totality of the averments as contained in the supporting affidavit and documentary evidence supplied by the Claimant in support of this Originating Summons, It is abundantly clear that the 1st Defendant dissolved or terminate the appointment of the Claimant as a member (including all the other members) of the 3rd Defendant’s Board on 31st August, 2017. And that the 1st Defendant paid the Claimant his monthly salaries from 24th July, 2013 when he was appointed as a member of the 3rd Defendant till 31st August, 2017 when the Claimant was removed.

Further argued that by the combined provision of section 197 (1), 198 of the 1999 constitution and section 4 (1), (2) and (3) of the DSIEC Law Cap, D24, Laws of Delta State 2006, the 1st Defendant has the constitutional and statutory powers to appoint the chairman and members of the 3rd Defendant subject to the confirmation by the Delta State House of Assembly. And that its a settled law when an enactment confers a power on a person (such as the 1st Defendant herein), to appoint that power includes the power to remove or suspend such an appointee like the Claimant in this case at any time and for any cause or causes. Cited the provisions of section 201 (1) and (2) of the 1999 Constitution as amended, section 7 (1) of the DSIEC Law, Cap. D24, Laws of Delta State, 2006 and section 11 of the Interpretation Act Cap 123, Laws of the Federation, 2004. And that the 2nd Defendant by two-thirds majority passed a resolution and urged the 1st Defendant to dissolve the membership of the 3rd Defendant as contained in Exhibit LOA2, and it was upon that resolution that the 1st Defendant acted and dissolved the board of the 3rd Defendant. And it was pursuant to the resolution of the 2nd defendant that the 1st defendant wrote Exhibit LOA4.

On the issue of the claims made by the Claimant on his gratuities and salary, the Defendants postulated that the Claimant is not entitled to any gratuities by reason of the fact that he retained the Prado Jeep being his official vehicle given to him by the 1st Defendant, which the Claimant took in lieu of his gratuity. Also that the Claimant can not make a claim on behalf of his political aide one Hon. Magbemi Jerusalem since he is not a party in this suit. And also that the reasons stated by the 2nd Defendant in the resolution on why the Claimant was removed is based on repositioning the state electoral body and as such has not in any way dented the image of the Claimant.

In arguing question 8 and 9 together, Counsel to the Defendants adopted same arguments canvassed in arguing issues 1 – 7, which I felt there is no need to reproduced same here, same having been analysed and reviewed.

On the admissibility of all the exhibits attached, that is Exhibits LOA1 – LOA9 which Counsel submitted that all are public documents and as such must satisfy the provisions of sections 101, 102, 103 and 104 of the Evidence Act, 2011 and as such requires certification, and a cursory look at same clearly shows that they are not certified. And failure to certify them renders them inadmissible in law and urged this court to so hold.

Finally the Defendants urged this court to dismiss this application and hold that the Board of the 3rd Defendant which the Claimant was a member was rightly dissolved.

CLAIMANT’S REPLY ON POINTS OF LAW

In opposing the counter affidavit filed by the Defendants, the Claimant filed a 5 paragraphs further and better affidavit on the 28th February, 2018, and a written address. In his address the Learned Counsel to the Claimant submitted that by the combined effect of sections 197 (1), (b), 201 (1) (2) of the Constitution of the FRN 1999 (as amended) and section 7 (1) of the DSIEC Law 2012 the Claimant cannot be removed as a member of the 3rd Defendant without following the due process of law, and that the reasons given by the 2nd Defendant in dissolving the Board of the 3rd Defendant which the Claimant was a member is null and void. Because where a statute or a rule prescribes a mode of doing a thing, it is that mode and no other that must be applied. Cited the case of C.C.B vs A.G ANAMBRA STATE (1992) 2 NSCC 270 at Lines 49 – 51 Per NNAMAEKA AGU JSC. And failure to comply with the mode of doing things prescribed by a statute, will render the Act an nullity. Cited ABUBAKAR VS NASAMU (No 2) (2012) 17 NWLR (PART 1330) 407 SC at Paras H.

Further submitted that, the appointment of Hon. Magbemi Johnson is tied to the Claimant’s tenure of office and since then tenure of the Claimant has not elapsed, then the appointment of Hon. Magbemi Jerusalem still subsist.

On the issue of Exhibits LOA1 – LOA9 which the Defendants canvassed that same are not admissible in law, it is the contention of the Claimant that the said documents do not come within the contemplation of public documents as contained in section III (1) of the Evidence Act, 2011. That the said documents are private documents and as such need no certification. Cited the case of Governor of Kwara State Vs. Lawal (2007) 13 NWLR (pt. 1051) 347 CA at Pg 381 Para F. Also contended that the originals of the said documents are in the position of the defendants and urged this court to presumed so. Cited section 167 of the Evidence Act, 2011.

Finally, urged this court to grant all their reliefs and give judgment in favour of the Claimant as per the Originating Summons and dismiss the arguments and submissions of 1st, 2nd, 3rd and 4th Defendants.

 

COURT’S DECISION

 

I have read and understood the processes filed by the Learned Counsel for both parties in this suit. I also analysed the written addresses filed and the averments contained in both the Supporting and Opposing Affidavits, I have also evaluated all the exhibits, and having done that I narrow the issues for the just determination of this case down to the following:

(a)      Whether taking into consideration the circumstances of this case, the       Claimant has proved his case to be entitled to all or some of the reliefs    sought.

(b)     Whether the 2nd Defendant’s resolution passed on 31/8/2017 and subsequent     recommendation to the 1st Defendant to dissolve the board of the 3rd        Defendant is valid in law?

In arguing issue one and two together, its trite that there are roughly three categories of contract of employment, these includes those regarded as purely master and servant, those where a servant holds office at the pleasure of the employer; and those where the employment is regulated or governed by statute, otherwise known as having statutory flavour. See CENTRAL BANK OF NIGERIA Vs. IGWILLO (2007) 14 NWLR (pt. 1054) 393; LONGE Vs. FBN PLC (2010) 6 NWLR (Pt. 1189) 1 SC.

 

Furthermore, under a contract of employment with statutory flavour, the court is not entitled to look outside the contract of service as to the terms and conditions. The parties to the contract are bound by the four walls of the contract and the only duty of the court is to strictly interpret the document that gives right to the contractual relationship in the interest of justice. See the case of DAODU VS. U.B.A PLC (2004) 9 NWLR (PT. 878) 276 C.A; AKINFE VS. U.B.A PLC (2007) 10 NWLR (PT. 1041) 185.

Having said all these, there is no any doubt about it that all the parties agreed that the Claimant was appointed by the 1st Defendant and the said appointment was equally confirmed by the 2nd Defendant in line with the provision of the law. And its also not in doubt that the Claimant was appointed for a term of five years from 24/7/2013 to 23/7/2018 as provided for in section 197, 198 and 199 of the Constitution of the FRN, 1999 (as amended); and section 6 (1) of the DSIEC law of 2012 (see Exhibit LOA1).

It is also not in doubt that the 2nd Defendant on the 31st August, 2017 passed a resolution and passed a recommendation to the 1st Defendant to dissolve the Board of the 3rd Defendant (where the Claimant was a member) and urged the 1st Defendant to act on the basis of their resolution (see Exhibit LOA2). And based on that resolution the 1st Defendant acted based on that and dissolved the board of the 3rd Defendant; and caused Exhibits LOA3 to be written to the Secretary of the 3rd Defendant, and the Claimant was also notified about the said dissolution in Exhibit LOA4.

On issues 1 and 2 there is no any doubt that by paragraphs 2, 3 and 7 of the affidavit in support of the originating processes, Exhibits LOA1 clearly showed that the appointment of the Claimant is one covered by the statute. See section 6 (1) of the DSIEC Law of 2012 and section 199 (1) of the Constitution of the Federal Republic of Nigeria which statutorily fixed the tenure of the Claimant and other members of the 3rd Defendant’s board for five years. And it’s also in doubt that the appointment of the Claimant was with effect from 24/7/2013 to 23/7/2018; but same was abruptly brought to an end on the 31/8/2017 based on the resolution of the 2nd Defendant and the recommendation to the 1st Defendant fully knowing that the appointment of the Claimant is one with statutory flavour and as such the tenure is duly protected by the statute. And its trite that where there are rules, regulations or statutory provisions governing the termination of an appointment which is protected to some extent by a statute, rules, regulations or conditions of service dealing with the procedure for bringing an employee’s appointment to a lawful end same must be complied with. See UNIVERSITY OF CALABAR VS INYANG (2016) 67 N.L.L.R (PT. 241) 483 C.A; SHITTA BEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC PG 40.

In the instant case, the appointment of the Claimant was protected to some extent by statutory provisions. He cannot be removed at the whim and caprice of the 1st or 2nd Defendants. The procedure for bringing his appointment to a lawful end must be complied with. See section 6(1), 7 (1), of the DSIEC Law 2012, sections 197(1), 198, 201 (1) of the Constitution of the FRN 1999 (as amended).

Therefore, I resolved issues 1 and 2 in favour of the Claimant and hold that the appointment of the Claimant is for five years from 24/7/13 to 23/7/2018 and as such is still subsisting. The Claimant is still an employee of the 3rd Defendant.

On questions 3, 4, 5, 6, 7 and 8 together, by paragraphs 4, 5, 6, 14 and 15 of the affidavit in support of this application and by the combined effect of sections 197 (1) (b), 201 (1), (2)  of the Constitution of the FRN 199 (as amended) and section 7 (1) of the DSIEC Law 2012, It is very clear that the 2nd Defendant is only empowered to make recommendation to the 1st Defendant, that is to say with respect to the removal of the chairman and members of the 3rd Defendant upon an address supported by two third majority of the 2nd defendant on grounds of inability to discharge the functions of their office or misconduct or for any other cause. And the reason adduced by both the 1st and 2nd defendants as contained in Exhibits LOA3 and LOA4 shows that the Claimant and other members as the 3rd Defendant were removed in other to enhance the electoral process in Delta State. And its trite courts are to give effect to the ordinary wordings and meaning as ascribed in a statute where the wordings are clear and unambiguous. See F.R.N Vs. GEORGE OSAHON & 7 ORS (2006) ALL FWLR (Pt. 312) 1975 at 1979 Ratio 2. And that the provisions of section 201 (1) and (2) of the constitution of the FRN 1999 (as amended) and section 7 (1) of the DSIEC Law, 2012 is clear. And there is no any proof to show that the Claimant and other members of the 3rd Defendant were removed due to the fact that they were unable to discharge the functions of their respective offices.

In the case of the GOVERNOR OF KWARA STATE & ANOR VS ALH. ISSA OJIBARA (2006) 18 NWLR (PT. 1012) PG 645 AT 654 on the grounds for removal of the chairman and members of the state executive bodies which includes state civil service commission, state independent electoral commission and state judicial service commission OGUNTADE JSC at page 654 paras D – G state as follows:

        “By virtue of section 201 (1) & (2) of the 1999 constitution, any person   holding any of the offices of chairman or member of a state independent   electoral commission shall only be removed from 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.”

On tenure of members of the State Independent Electoral Commission and the rationale therefore the Supreme Court per Oguntade JSC in Governor of Kwara State Vs. Ojibara (supra) stated as follows:

“…the constitution however grants the members of a state independent electoral commission, a tenure of five years. The deliberate purpose is to create an electoral commission, the lifespan of which exceeds those of both the Governor and the state legislature. This is done with a view to create continuity and stability in the electoral process and governance…. Therefore, the protection afforded the respondents in this case by the constitution can not just be wished away by the sheer whims and caprices of those in authority.”  See pp. 659 – 660, paras F – C; 666, paras D – E.

On the issue on grounds for removing the Chairman and members of state executive bodies, the supreme court per Oguntade JSC in the GOVERNOR OF KWARA STATE VS ALH. ISSA OJIBARA (SUPRA) stated at pg 654, and page 654, para D – G:

“The grounds for the removal of the chairman and members of state civil service commission, State Independent Electoral Commission and State Judicial Service Commission are:

(a)      Inability to discharge the functions of the office (whether arising from      infirmity of mind, body or any other cause); or

(b)     Misconduct

See also the case of ALH. ABBA ALI & 6 ORS VS THE GOVERNOR OF BORNO STATE & 3 ORS (2008) ALL FWLR PG 365.

On the improper removal from office protected by the law, the supreme court in GOVERNOR of KWARA STATE Vs. OJIBARA (supra) at pp. 660 – 662, PARAS H – E stated that an improper removal from office specifically protected by law would be deemed a null act. The consequent of that in the eyes of the law, the person so illegally removed had not been removed from office and ought to be reinstated, meaning putting the specified person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminated his employment.

In view of the foregoing facts I enumerated ab-initio, I answered questions 3, 4, 5, 6 and 7 in the affirmative and resolved same in favourt of the claimant.

On the ninth issue that is whether the Claimant is not entitled to damages for unlawful termination or determination of his appointment as a member of the 3rd Defendant and the odium associated with the manner of disengagement which is tied to relief 13 of the Claimant’s claim, it is of legal importance to note that the Claimant was relieved of his appointment which is in contravention to Section 5 (1) of the law establishing the 1st Defendant. And it’s trite that where the terms and conditions of contract of employment are specifically provided for by the statute or regulations made there under, it is said to be a contract protected by statute or in other words, an employment with statutory flavour. See KUTI VS. NSITFMB (2016) 67 N.L.L.R. (PT. 240) 426 NIC.

 

Where there are rules and regulations governing the termination of an appointment which is protected to some extent by the conditions of service (like in this case) such rules and regulations dealing with the procedure for bringing an employee’s employment to a lawful end must be complied with. Such an employee can not be removed from the service at the whim and caprice of his employer. See SHITTA-BEY VS FEDERAL PUBLIC SERVICE COMMISSION (1981) 1SC AT 40; UNIVERSITY OF CALABAR VS. INYANG (2016) 67 N.L.L.R. (PT. 241) 483 CA.

Furthermore, the Court of Appeal in ADAMS Vs. L.S.D.P.C (2000) 5 NWLR (PT. 656) 291 CA stated that in an action for wrongful termination of appointment for the Claimant to succeed the Claimant must plead and prove that he was employed by the Defendant(s), the terms and conditions of his appointment including duration and termination, who can appoint and remove him, the circumstances under which his appointment can be terminated. The claimant has pleaded and proved all these vide EXHIBITS LOA1 which showed that it was the 1st Defendant who appointed the Claimant. And the tenure of office as is for a period of five years. And the Claimant vide EXHIBIT LOA1  was appointed  from 24/7/2013 and his tenure will elapsed on 23/7/2018 that is 3 days away from today but the claimant was removed without complying with the provisions of  201 (1) of the 1999 Constitution and section 7 (1) of DSIEC law which provided for the procedure for the removal of the Claimant, the 2nd Defendant by a resolution contained in EXHIBITS LOA2 illegally recommended that the Claimant on 31st August, 2017 be removed thereby abruptly terminated or ended the tenure of the Claimant and other members of the 3rd Defendant.

In view of the foregoing facts I enumerated ab-initio I felt the Claimant has satisfactorily proved his case and as such he is entitled to the reliefs sought as contained in the originating summons.

On claim (13) which is payment of (N100, 000,000) One Hundred Million Naira to the Claimant against the Defendants for embarrassment, humiliation, denigration and psychological trauma caused to the claimant by the defendants unwarranted acts of purported removal of the Claimant, its pertinent to state here that the Claimant is entitled to compensation or damages in any circumstance contemplated dealing with any matter that the court has jurisdiction. The Claimant having proved his case in line with the provisions of Section 19 (d) of the NIC Act 2006, I order the Defendants to pay the sum of N2,000,000.00 (Two Million Naira) to the Claimant as damages.

Let me briefly state that I aligned myself with the submissions made by the learned counsel to the defendants that it was the 1st Defendant who appointed the Claimant and other members of the 3rd Defendant pursuant to section 197 (1) and 198 of the Constitution of the FRN 1999 (as amended) and section 4 (1) of the DSIEC law, the fact that it was the 1st Defendant who appointed the Claimant does not in any way confer the right of outward removal without complying with the provisions of section 201 (1) of the Constitution and section 7 (1) of the DSIEC Law.

On the issue of rejecting Exhibits LOA1 – LOA9 due to the fact that they are public documents and must satisfy with the provisions of sections 101 -104 of the Evidence Act 2011 (as amended) and as such same ought to be rejected, I wish to state here that the said documents emanated from the defendants and same are only exhibited along with the originating processes. And the defendants had never denied the fact that same originated from them, as such they are admissible in law. See section 12 (2) (b) of the NIC Act 2006.

On the issue of the propriety of the Claimant to make a claim on behalf of one Hon. Magbemi Jerusalem, who is the personal assistant to the claimant, one can see that by exhibit LOA1 which is the letter of appointment of the claimant, the claimant is entitled to a personal assistant. And to buttress this fact, in Exhibit LOA7 which is the letter of appointment of Hon. Magbemi Jerusalem it showed that his appointment is tied down to the tenure of office of the Claimant. In view of that even if Hon. Magbemi Jerusalem is not a party in this suit the Claimant can actually make a claim on his behalf or he can institute an action separately.

Finally for the avoidance of doubt and for all the reasons as stated in this Judgment, I hold that the Claimant has proved his case and as such judgment is here entered in favour of the Claimant as follows:

  1. I declare that the employment or appointment of the Claimant is one with statutory flavour governed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Delta State Independent Electoral Commission Law.

  1. I declare that the tenure or appointment of the Claimant is for a tenure of five years from 24/7/2013 to 23/7/2018.

  1. The purported termination of the Claimant’s appointment or disengagement as a member of the 3rd Defendant by the 1st and 2nd Defendants vide letter dated 14th September, 2017 is unlawful, ultra vires, null, void and of no effect whatsoever and same is hereby set aside.

  1. The Claimant is entitled to all his remuneration including his salaries and allowances for the remainder of the period of his tenure as a member of the 3rd Defendant which is to terminate on 23/7/2018.

  1. I order the Defendants to pay the Claimant all his remuneration, including his salaries and allowances for the remainder of the period of his tenure as a member of the 3rd Defendant.

  1. I order the 1st and 3rd Defendants to pay to the Claimant the sum of N12, 474, 630. 00K(Twelve Million, Four Hundred and Seventy Four Thousand, Six Hundred and Thirty Naira) gratuity allowance for the remaining eleven months from September, 2017 to July, 2018.

  1. The sum of Two Million (N2, 000, 000.00) as damages.

  1. All the terms of this judgment are to be complied within 30 days from today.

Judgment is hereby entered accordingly.

_______________________________________________________

HON. JUSTICE BASHAR .A. ALKALI

                                                             PRESIDING JUDGE       

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