IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA ———————————————————————————————————————————————————————————————————————- Suit No: NICN/OW/76/2016 Petitioner: Dr. Livy Uzoukwu OON, SAN ANOR And Respondent: Governor of Imo State ANOR Date Delivered: 2017-07-05 Judge(s): HONOURABLE JUSTICE O. Y. ANUWE Judgment Delivered Representation: K. C. O. Njemenze SAN with him, A. S. Kolawole, N. C. Ohakwe, K. I. Uduma, O. C. Chineme Anyaeze and C. E. Nnodum for the Claimants Kelechi Ejiofor, Senior State Counsel Imo State Ministry of Justice, for the 1st to 3rd Defendants A. C. Akwete for the 4th to 7th Defendants JUDGMENT The Claimants were members of the Imo State Judicial Service Commission (Imo JSC) until 31st October 2016 when they were removed from office as members of the Imo JSC by the 1st Defendant. The Claimants consequently instituted this action by way of Originating Summons dated 21st November 2016 and filed on 29th November 2016. In the Originating Summons, the Claimants raised the following question for the determination of the court: 1. Whether, having regard to the provisions of Sections 197(1)(c), 199(1)(c) and 201(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the 1st Defendant is empowered, or has the jurisdiction, to dissolve the Imo State Judicial Service Commission. 2. Whether, having regard to the aforementioned provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the 1st Defendant’s letter Ref. No. SG1/S.209/S.1/X of 31st October, 2016, titled “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION”, issued on his behalf by the Secretary to the Government of Imo State, and addressed to each of the Claimants, is not ultra vires the powers of the 1st Defendant. 3. Whether, having regard to the aforementioned provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the 1st Defendant can remove the Claimants from office as members of the 3rd Defendant (Imo State Judicial Service Commission) on the basis of the aforementioned letter Ref. No. SG1/S.209/S.1/X of 31st October, 2016, titled “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION” issued on his behalf by the Secretary to the Government of Imo State, and addressed to each of the Claimants. 4. Whether the 1st Defendant can remove the Claimants from office as members of the 3rd Defendant (Imo State Judicial Service Commission) without complying strictly with the provisions of Section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. 5. Whether in purporting to remove the Claimants from office as members of the 3rd Defendant (Imo State Judicial Service Commission) they were not entitled to a fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In their expectation that the above questions will be determined in their favour, the Claimants sought the following reliefs: 1. A Declaration that the 1st Defendant, having regard to the provisions of Sections 197(1)(c), 199(1)(c) and 201(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, is not empowered, or does not have the jurisdiction, to dissolve the Imo State Judicial Commission. 2. A Declaration that, in light of the provisions of Sections 197(1)(c), 199(1)(c) and 201(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st Defendant’s letter Ref. No. SG1/S.209/S.1/X of 31st October, 2016, titled “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION”, issued on his behalf by the Secretary to the Government of Imo State, and addressed to each of the Claimants, is ultra vires the powers of the 1st Defendant and is null and void. 3. An Order nullifying the 1st Defendant’s letter Ref. No. 5G1/S.209/S.1/X of 31st October, 2016, titled “RE: DISSOLUTION OF’, THE JUDICIAL SERVICE COMMISSION”, issued on behalf of the 1st Defendant by the Secretary to the Government of Imo State, and addressed to each of the Claimants. 4. A Declaration that the 1st Defendant’s letter Ref. No. SG1/S.209/S.1/X of 31st October, 2016, titled “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION”, issued by the Secretary to the Government of Imo State on behalf of the 1st Defendant, and addressed to each of the Claimants, does not, has not, and cannot remove the Claimants from office as members of the Imo State Judicial Service Commission. 5. A Declaration that the Claimants are still members of the 3rd Defendant and that the 1st Defendant cannot remove the Claimants from office as members of the Imo State Judicial Service Commission (3rd Defendant) without complying strictly with the provisions of Section 201(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. 6. An Order directing the 1st, 2nd and 3rd Defendants to pay or continue to pay to each of the Claimants the salaries and/or allowances; emoluments and/or entitlements attached to their membership of the Imo State Judicial Service Commission until the expiry of their tenure in March, 2019. 7. A Declaration that the 1st Defendant’s purported appointment of the 4th, 5th, 6th and 7th Defendants as members of the Imo State Judicial Service Commission, to replace the Claimants, is ultra vires the powers of the 1st Defendant and is null and void. 8. An Order of injunction restraining the 4th, 5th, 6th and 7th Defendants from acting, pretending, performing or in any other manner holding themselves out as members of the Imo State Judicial Service Commission. 9. An Order of injunction restraining the 3rd Defendant from recognizing or regarding the 4th, 5th, 6th and 7th defendants as members of the Imo State Judicial Service Commission and, in particular, allowing the 4th, 5th, 6th and 7th defendants from participating in the functions or duties of the Imo State Judicial Service Commission. 10. An Order of injunction restraining the 8th Defendant from dealing with (and especially accepting or acting on any correspondence from) the 3rd Defendant during the currency of the 1st Defendant’s letter Ref. No. SG1/S.209/S.1/X of 31st October, 2016, addressed to each of the Claimants by the Secretary to the Government of Imo State and/or with the purported membership of the 4th, 5th, 6th and 7th Defendants in the 3rd Defendant. The facts in support of the Originating Summons are contained in a 20-paragraph affidavit deposed by the 1st Claimant. It was averred that the Claimants were sworn-in as members of the Imo State Judicial Service Commission, who is the 3rd Defendant in the suit, by the 1st Defendant on 17/3/2014, after their appointments were confirmed by a resolution of the Imo State House of Assembly. Copies of the Claimants’ letters of appointment were exhibited to the affidavit as Exhibits one, two, three and four. Upon their appointment, the Claimants’ tenure of office was five years from the date of appointment which period will elapse on 17/3/2019. The Claimants assumed duties and duly performed the functions of their appointment until 20th October 2016 when the deponent was informed by one A. S. Kolawole, Esq., of an announcement over the Imo Broadcasting Commission (IBC) Radio by the Principal Secretary to the 1st Defendant that the 3rd Defendant had been dissolved. The deponent was also told that the names of the 4th, 5th 6th and 7th Defendants were announced by the Principal Secretary to the 1st Defendant as the new non-ex officio members of the 3rd Defendant. On 27/10/2016, the 1st Defendant swore in the 4th, 5th, 6th and 7th Defendants as members of the 3rd Defendant, which swearing-in ceremony was published in the White Paper Newspaper of Friday October 28, 2016 – Sunday October 30, 2016 edition. Exhibit five is a copy of the newspaper. Following the development, the Claimants’ solicitor, K. C. O. Njemanze, SAN, wrote a letter of 26/10/2016, which is Exhibit six, to the 1st Defendant. In reaction to the letter from the Claimants’ Solicitor, the Secretary to the Government of Imo State addressed a letter dated 31/10/2016 to each of the Claimants with the title “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION” conveying the dissolution of the 3rd Defendant to the Claimants and referred to the Claimants as former members of the 3rd Defendant. The letters to each of the Claimants are Exhibits seven, eight, nine and ten. The deponent further deposed that he, as a legal practitioner, knows that the 1st Defendant does not have the power to dissolve a body like the 3rd Defendant established by the Constitution of the Federal Republic of Nigeria, 1999. It was also averred that there are certain constitutional steps which must be observed by the 1st Defendant before he can lawfully remove a member of the 3rd Defendant before the expiration of tenure of office. The 1st Defendant did not observe such steps before purporting to remove the Claimants. The deponent further stated that in 2011, the 1st Defendant dissolved the 3rd Defendant and removed the four non-ex officio members of the 3rd Defendant. The removed members sued the 1st Defendant in the High Court, Owerri in Suit No. HOW /683/2011 between Barrister C.E. Igwe & 3 Others vs. Governor of Imo State & 4 Others. The Court nullified the dissolution of the 3rd Defendant in the judgment delivered on 27/6/2012 and reinstated the Plaintiffs in the suit to office. A copy of the judgment is Exhibit twelve. In the written address in support of the Originating Summons, learned counsel for the Claimants based his argument upon the five questions and distilled two issues for determination in the Originating Summons as follows: a. Whether the 1st Defendant has the power under the Constitution of the Federal Republic of Nigeria 1999, as amended, to dissolve the 3rd Defendant b. Whether by purportedly dissolving the 3rd Defendant, the 1st Defendant has lawfully removed the Claimants from office as members of the 3rd Defendants. On Issue 1, Counsel referred to Exhibits “Seven―, “Eight―, “Nine― and “Ten― attached to the affidavit in support of the originating summons where the 1st Defendant informed the Claimants of “the dissolution of the Judicial Service Commission― consequent upon which the Claimants had been relieved of their membership of the 3rd Defendant and were referred to as former members of the commission. In resolving this issue counsel urged the court to have recourse to the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 197(1) and (2) of which provides for the composition and powers of 3rd Defendant. According to the Claimants, the only relevant Constitutional provisions concerning the State Judicial Service Commission relate to the appointment, tenure and removal of their members. These are contained in Sections 198, 199(1)(c) and 201 of the Constitution. In the absence of any provision in the constitution for the dissolution of the 3rd Defendant, the 1st Defendant is bereft of powers to dissolve the body. The 1st Defendant is only empowered by Sections 198 and 201(1) of the Constitution to appoint and remove persons to the 3rd Defendant and no more. The 1st Defendant’s issuance of Exhibits “Seven―, “Eight―, “Nine― and “Ten― to the Claimants were ultra vires his powers under the constitution and therefore unconstitutional, null and void. Counsel cited the case of FASAKIN FOODS (NIG) LTD vs. SHOSANYA [2006] 10 NWLR (Part 987) 126, 148G-H; A. G. ABIA STATE vs. A. G. FEDERATION (2002) 6 NWLR (Pt. 763) 264 at Pg. 472E and argued that even though the 3rd Defendant is a State Executive body, the 1st Defendant not being the creator of the 3rd Defendant cannot be the destroyer or the eraser of the body. The 1st Defendant therefore has no power to dissolve, abrogate or annul the 3rd Defendant. He also has no power to issue Exhibits “Seven―, “Eight―, “Nine― and “Ten― which said letters have no legal effect. Counsel urged the court to declare the letters a nullity and hold that the first Issue for determination be resolved in the negative and against the Defendants. In arguing Issue 2, counsel submitted that Section 199(1)(c) of the Constitution has made clear provisions for the tenure of office of members of the 3rd Defendant such as the Claimants who are not ex-officio members while Section 201(1), (2) makes provision for the removal of members of the 3rd Defendant. Exhibits “One―, “Two―, “Three― and “Four― are evidence of the Claimants appointment to the office as members of the 3rd Defendant with effect from 17th March 2014. By Section 199(1)(c) of the Constitution which provides for a five year tenure from the date of appointment, the Claimants ought to vacate office on 17th of March 2019 except they are removed from office constitutionally in the light of Section 201(1). Counsel cited the Supreme Court case of GOVERNOR OF KWARA STATE vs. OJIBARA [2006] 18 NWLR (Pt. 1012) 645, 659G-660E to buttress this point in relation to the tenure of office of the State Independent Electoral. According to the Claimants, they were made to vacate office 29 months before the time and that Exhibits “Seven―, “Eight―, “Nine― and “Ten― showed that the 1st Defendant’s abrupt dissolution of the 3rd Defendant was not within the contemplation of the earlier cited constitutional provisions. They cited Suit No. NICN/OW/18/2013 PAUL OGUJIOFOR & 3 ORS vs. GOVERNOR OF IMO STATE & 3 ORS and Suit No. NICN/OW/20/2014 ROBERT ASUZU & 3 ORS vs. GOVERNOR OF IMO STATE & ANOR (per O. Y. Anuwe, J.) where similar unconstitutional removal from office was considered. Counsel also cited Exhibit “Twelve― where the 1st Defendant had dissolved the 3rd Defendant previously. In Appeal No. CA/OW/215/2011 EYINNANYA ONUEGBU & 26 ORS vs. GOVERNOR OF IMO STATE & 3 ORS, the Court of Appeal quashed the 1st Defendant’s unconstitutional act of removing the chairmen of the 27 Local Governments in Imo State before the expiration of their tenure (Unreported). According to the Claimants, the 1st Defendant takes delight in such unconstitutional acts which is intolerable in democratic governance. They urged the court to hold that the 1st Defendant’s action is outside the purview of Section 201(1) of the Constitution and that by Issuing Exhibits “Seven―, “Eight―, “Nine― and “Ten― the 1st Defendant had chosen to dispense with the constitutional role of the House of Assembly. They cited the cases of GOVERNOR KWARA STATE vs. OJIBARA (2006) 18 NWLR (Pt. 1012) 645; GOVERNOR OF EKITI STATE vs. AKINYEMI (2011) 17 NWLR (Pt. 1276) 373; F.M.C. IDO-EKITI vs. OLAJIDE (2011) 11 NWLR (Pt. 1258) 265; ADEYEYE vs. GOVERNOR OF EKITI STATE (2012) All FWLR (Pt. 652) 1744 in the light of which they urged the court to hold that the Claimants were appointed as members of the 3rd Defendant on 17.3.2014 for a tenure of office of 5 years; to expire on or about 17.3.2019; that Exhibits “Seven―, “Eight―, “Nine― and “Ten― issued to the Claimants on behalf of the 1st Defendant, indicating dissolution of the 3rd Defendant and removal of the Claimants from office as members of the 3rd Defendant were not made in compliance with the provisions of the Constitution; that the four exhibits were made ultra vires the powers of the 1st Defendant and, accordingly are null and void; and that the 3rd Defendant has not been dissolved and the Claimants remain members of the 3rd Defendant. Citing GOVERNOR OF KWARA STATE vs. OJIBARA, supra at pp 661B-662F, Counsel submitted that the first five reliefs sought by the Claimants are made out and should be granted and that the grant of the five reliefs leads inevitably to the award of the other five reliefs in the Originating Summons. On the sixth relief directing the 1st, 2nd and 3rd Defendants to pay or continue to pay to each of the Claimants the salaries and/or allowances, emoluments and/or entitlements attached to their membership of the 3rd Defendant until the expiry of their tenure in March 2019, Counsel submitted that this relief is consequential upon the grant of the first five reliefs citing FMC IDO-EKITI vs. OLAJIDE (2011) 11 NWLR (Pt. 1258) 256, 286. Counsel submitted that Reliefs 7, 8 and 9 in the Originating Summons concern the 4th, 5th, 6th and 7th Defendants purportedly appointed to replace the Claimants as members of the 3rd Defendant which serves to determine that their appointments are a nullity and that they should not be allowed to perform their duties as members of the 3rd Defendant. Counsel submitted that the Claimants are still members of the 3rd Defendant citing the case of PAUL OGUJIOFOR & 3 ORS vs. GOVERNOR OF IMO STATE & 3 ORS in which a similar point was dealt with. He urged the court to grant reliefs 7, 8 and 9 in the originating summons. Relief 10 is an injunctive relief against the 8th Defendant aimed at preventing the National Judicial Council from dealing with the 3rd Defendant in the 1st Defendant’s illegal actions in relation to the 4th, 5th, 6th and 7th Defendants which is consequential to the declaration that the 3rd Defendant and the removal of the Claimants are a nullity. To counsel, the importance of the powers of the 3rd Defendant as contained in Paragraph 6 of Part II of the Third Schedule to the Constitution shows the relationship between the 3rd Defendant and the 8th Defendant. Counsel urged the court to resolve all questions for determination in favor of the Claimants and grant all the reliefs sought in the Originating Summons. In defence of the claim of the Claimants in the Originating Summons, the 1st, 2nd and 3rd Defendants filed a counter affidavit of 14 paragraphs. The counter affidavit was deposed to by one Bruno Nwachukwu, a Litigation Officer in the Chambers of the 2nd Defendant. It was averred in the counter affidavit that the 1st Defendant appointed Hon. Justice J. Obasi Iwuagwu (rtd), Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo as non-statutory members of the 3rd Defendant on 29th July, 2010 but on 5th November, 2011 the 1st Defendant directed the suspension of the activities of the 3rd Defendant and on 10th November 2011 the 1st Defendant, acting on the resolution of the Imo State House of Assembly, removed Hon. Justice J. Obasi Iwuagwu (rtd) and 3 others from membership of the 3rd Defendant. The 1st Defendant also appointed 4 other persons in their place as non- statutory members of the 3rd Defendant. Hon. Justice J. Obasi Iwuagwu (rtd.) and the 3 other members challenged their removal in suit HOW/683/2011 before the Imo State High court sitting in Owerri. In the judgment delivered in the suit, the court, among other pronouncements, set aside the removal of the plaintiffs and restrained the 1st Defendant from appointing any person or allowing to persist any appointment into the membership of the 3rd Defendant in place of the plaintiffs in the suit. Going by the judgment, the tenure of Hon. Justice J. Obasi Iwuagwu (rtd.) and the 2 other members of the 3rd Defendant was supposed to expire on 28th July, 2015 but the Claimants were sworn in on 17th March, 2014. At the time the 1st Defendant appointed the Claimants as members of the 3rd Defendant, the 1st Defendant believed that the tenure of the former members had expired or brought to an end. The 1st Defendant’s attention was not drawn to the subsisting orders of Court. The 1st Defendant did not breach the law when he appointed the present members of the 3rd Defendant. In the written address in support of the counter affidavit of the 1st, 2nd and 3rd Defendants, their counsel submitted a sole issue for determination: Whether reviewing the appointment by the first Defendant viz-a-viz the subsisting case law implication in “Exhibit Twelve―, the 1st Defendant breached any law in the appointment of the present members of the Imo State Judicial Service Commission. Counsel referred the court to the Orders of the Court in Exhibit Twelve of the Claimants’ affidavit. He argued that the appointment of the Claimants on the 17th of March 2014 in the belief that the tenure of the former members had ended was a fundamental error which vitiates the legality of the appointment abinitio thereby rendering it null and void. See the case of AG FEDERATION vs. GUARDIAN NEWSPAPERS LTD. & ORS SC4/96; AG EKITI STATE & ORS vs. DARAMOLA & ORS (2003) FWLR (Pt. 169) 1121 @ 1167. If the court finds that the appointment of the Claimants was made during the currency of the tenure of the former members, the court is urged to hold that the appointment is of no effect and dismiss the reliefs sought by the Claimants and that a valid appointment of members of the Judicial Service Commission must be done in accordance with the law. Counsel argued that the appointment of the Claimants in the instant suit is a breach of the order of the court in Exhibit “Twelve― and therefore that the claimants are not competent to bring this action because no right can accrue to a litigant from a void act, as something cannot be put on nothing and expect it to stand. Counsel submitted in conclusion that the implication of the court order in Exhibit “Twelve― was that the former members were still members of the 3rd Defendant and it is impossible for them to be members at the same time and that the 1st Defendant breached no law in the appointment of the present members i.e. the 4th to 7th Defendants. He urged the court to dismiss this suit with cost. On their part, the 4th, 5th, 6th and 7th Defendants filed a counter affidavit in defence of the case of the Claimants. The counter affidavit, titled “affidavit in opposition―, was deposed by the 6th Defendant, Iheukwumere Henry Alaribe. The 6th Defendant stated that the Claimants were appointed by mistake after the judgment of the court delivered on 27/6/2012 in Suit No. HOW /683/2011 between BARRISTER C.E. IGWE vs. THE GOVERNOR OF IMO STATE & 4 ORS. Barrister C. E. Igwe was appointed as a member of the 3rd Defendant on 19th October 2007 while Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O.C Ndubuizu and Hon. Chief Nkem Nwankwo were appointed as members of the 3rd Defendant on 29th July 2010 for a tenure of Five Years each. While the tenure of C. E. Igwe expired in 2012, that of Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubuizu and Hon. Chief Nkem Nwankwo expired in June 2015. The appointments of the Claimants were done in error by both the Claimants and the 1st Defendant who did not take into cognizance the judgment delivered on 27th June 2012. The judgment of Imo State High Court protected the tenure of office of the plaintiffs in the case and prevented the 1st Defendant from dissolving the 3rd Defendant or removing the members or appointing any other person in their place until the expiration of their tenure in 2015. The plaintiffs in the case, Hon. Justice J. Obasi Iwuagwu (rtd), Prof. Thomas O.c. Ndubuizu and Hon. Chief Nkem Nwankwo, did not die nor did any of them resign his membership of the 3rd Defendant. The judgment was not also reversed on appealed. By the time the Claimants were appointed by the 1st Defendant as members of the 3rd defendant, the tenure of Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O.C Ndubuizu and Hon. Chief Nkem Nwankwo had not lapsed as they were still members of the 3rd Defendant. The 3rd Defendant is to be composed of 4 non-statutory members only but as at the time the Claimants were appointed, there were existing 3 non-statutory members appointed on the 29/7/2010. The tenure of the members of the 3rd Defendant appointed in 2010 expired in 2015 and they all received their salaries till 2015. The Claimants were not actual members of the 3rd Defendant because they were usurpers who deliberately disregarded the judgment of court. The appointment of the 4th to 7th Defendants as members of the 3rd Defendant was announced over the radio and published in the newspapers. The appointment and swearing in of the 4th to 7th Defendants was done after the expiration of the tenure of the members of the 3rd Defendant appointed in 2010. The 4th to 7th Defendants were appointed not as Ex- Officio members but as non-statutory members of the 3rd Defendants. The 4th to 7th Defendants admitted through the 6th Defendant that the 1st Defendant has no power to dissolve the 3rd Defendant but averred that the action of the 1st Defendant was merely to remove the Claimants from office since they were appointed in error. According to the deponent, the 1st Defendant has no power to dissolve the 3rd Defendant if it is properly constituted in accordance with the Constitution. In 2011, the 1st Defendant requested the suspension of the activities of the 3rd defendant through a letter to the Chairman of the 3rd Defendant. However a Court of Competent jurisdiction nullified the suspension and restrained the 1st Defendant from dissolving the 3rd Defendant or appointing any other persons into the 3rd Defendant. The 1st Defendant was obeying the judgment by removing the Claimants. In the written address in support of the counter affidavit of the 4th to 7th defendants, their counsel submitted three issues for determination: a. Whether the purported appointment of the Claimants on 17th March 2014 as members of Imo State Judicial Service Commission (3rd Defendant) was proper having regard to the valid judgment of the court in SUIT NO. HOW/683/2011: BARRISTER C. E. IGWE & 3 ORS vs. THE GOVERNOR OF IMO STATE & ORS when the tenure of the incumbents had not expired and subsisting. b. Whether the Governor of Imo State (1st Defendant) needed to comply with the provisions of Section 201(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) of sections to remove from office the Claimants who were defacto members of the Imo State Judicial Service Commission having regard to the judgment of a court of competent jurisdiction in SUIT NO. HOW/683/2011. c. Whether the Claimants have security of tenure and protection of Section 201(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) having regard to the circumstances of their appointment. On Issue 1, the 4th, 5th, 6th, and 7th Defendant argued that the Claimants were appointed when there was no vacancy in the composition of the membership of Imo State Judicial Service Commission. Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubuizu and Hon. Chief Nkem Nwankwo were appointed into the Imo State Judicial Service Commission with a constitutionally guaranteed tenure of 5 years which expired on 29th June 2015 which was reaffirmed in a valid and subsisting judgment of a court of competent Jurisdiction delivered on 27th June 2012. By the combined effect of Section 199(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria and the judgment of court, the position of non-statutory members of the 3rd Defendant was not vacant to have enabled the 1st Defendant appoint the Claimants. Counsel submitted that the consequent appointment of the Claimants as members of the 3rd Defendant on the 17th March 2014 was improper, null and void and in derogation of a valid judgment of a court of competent jurisdiction when the position was not vacant. According to counsel, the valid judgment of a court of competent jurisdiction is binding unless it is reversed on appeal. He cited the cases of KUBOR vs. DICKSON (2013) 4 NWLR (Pt. 1345) at page 534; AHMED vs. COMMISSIONER OF POLICE: CHUKWUEMEKA vs. OKORONKWO (1999) 1 NWLR (Pt. 587) at 413. The judgment in Exhibit 12 is a judgment relating to the provision of the constitution and security of tenure of members of the Commission established by the Constitution and it is a judgment in rem binding on not only the parties to the Suit but also the Claimants. Counsel referred the court to the case of OKPALUGO vs. ADESHOYE (1996) 10 NWLR (Pt. 476) at 82. The fact that 1st, 2nd and 3rd Defendants in this suit are bound by the judgment of court in the Claimants’ Exhibit 12 is beyond question because they were parties, and that judgment was not set aside on appeal. On this point, Counsel cited the case of NDAYAKO vs. DANTORO (2004) 13 NWLR (Pt. 889) at 187 SC. A judgment in rem is a judgment contra mundun, binding on both parties and their privies and also non-parties. See OGBORU vs. IBORI (2015) 13 NWLR (Pt. 942) at 319. To counsel, having known about Exhibit 12, the Claimants were encouraging contempt of court by the 1st, 2nd and 3rd Defendants. The law is that a party in contempt cannot be heard. He referred to Section 7 of the Criminal Code on parties to an offence and the cases of GOVERNOR OF LAGOS STATE vs. OJUKWU (1986) 1 NWLR (Pt. 18) at 621; TEWOGBADE & SONS LTD vs. GOVERNOR OF OYO STATE (1991) 2 NWLR (Pt. 171) at 52; OWOYEMI vs. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462. Counsel therefore submitted that the appointment of the Claimants was wrongful, illegal, null and void having been made in derogation of a valid and subsisting judgment of a court of competent jurisdiction which order and judgment the Claimants knew about. On Issue 2, the 4th, 5th, 6th and 7th Defendants referred to the judgment in Exhibit 12 arguing that it answered the question whether constitutionally the 1st Defendant is competent to appoint other persons as non-statutory members of the 4th Defendants during the tenure of office of the Claimants, and that the court in Exhibit 12 restrained the 1st Defendant from appointing any person to the position of the Claimants in Exhibit 12 until the expiration of their tenure. According to counsel, the appointment of the Claimants by the 1st Defendant was vitiated by the order of the court in Exhibit 12; and that their appointment was a nullity and devoid of the protection of Section 201(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) or security of tenure contained in Section 199(1)(c) of the Constitution. Counsel went on that the Claimants usurped offices when there was no vacancy in the 3rd Defendant. Their appointment being a nullity implies that Section 201 (1) of the 1999 Constitution cannot apply to their removal and that the word “dissolution― in removing the Claimants as members of the 3rd Defendant is an official window dressing because their appointment is a nullity, as the 1st Defendant lacked the constitutional competence to do so when the positions were not vacant. The Claimants in Exhibit 12 were on a solid ground unlike the Claimants in this suit who were at the mercy of the 1st Defendant. The law is that when an existing interest is not properly extinguished, no other interest can be created and any such known interest is a nullity. See the case of ADMINISTRATORS/ EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. SAMUEL DAVID EKE-SPIFF (2009) 2 SCNJ 19 at 140. In the case of CHIEF GREAT OVEDJE OGBORU vs. CHIEF JAMES ONANEFE IBORI & 27 ORS (2005) 13 NWLR (Pt. 942) 319 at 415 & 416, the court considered the distinction between a judgment in rem and a judgment in personam and held that a judgment in rem is when and where it is a solemn pronouncement upon the status of a particular subject matter. The term judgment in rem is clearly understood in law as a judgment of a court of competent jurisdiction determining the status of a person or thing or the disposition of a thing. The action which ends such judgment should be an action filed for a purpose of such determination e.g. in a petition for divorce, a decree nisi or divorce. The Claimants as well as the 1st, 2nd and 3rd Defendants are bound by the judgment of the court in Exhibit 12. Therefore the purported appointments of the Claimants in 2014 by the 1st Defendants and the Claimants’ acceptance of the appointments as members of the 3rd Defendant is a nullity did not exist and never happened. Their removal in any form whichever way it is done by the 1st Defendant is proper and did not need compliance with the provisions of Section 201(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Counsel, citing Matthew 7: 1 & 2, submitted that the Claimants without conscience usurped the position of the members of the 3rd Defendant appointed in 2010 whose tenure expired in 2015. Counsel submitted that the 1st Defendant is not competent to dissolve the 3rd Defendant except by the removal of members in accordance with Section 201(1) of the 1999 Constitution of the Federal Republic of Nigeria, and that the removal of the Claimants by letter is a surplusage. The Claimants were illegal members of the Judicial Service Commission appointed when the tenure of the former members was still running and the positions were not vacant. Following the judgment in Exhibit 12 which is valid and subsisting, the Claimants cannot approach the court for a redress having failed to obey or comply with the judgment and order of a court of Competent jurisdiction. The law is that where a person has failed or neglected to respect the order of a court, the court will not exercise its discretionary powers in its favour, and to do otherwise amounts to abuse of court process. See the case of ABA SOUTH LOCAL GOVERNMENT & ORS vs. MRS LETICIA NJIOBI & 7 ORS (2008) 6 NWLR (Pt. 1084) at 509-510. See also OJAMEM vs. MOMODU II (1995) 6 NWLR (Pt. 403) at 589. The court is duty bound to protect and defend the orders and judgment of court and the judgment of the court in the Claimants’ Exhibit 12 need to be protected and defended by this court by dismissing this suit. See LAWAL OSULA vs. LAWAL OSULA (1995) 3 NWLR (Pt. 382) at 134; GOVERNOR OF LAGOS STATE vs. OJUKWU (1986) 3 NWLR (Pt. 18) at 621. Counsel urged the court to dismiss the suit as the Claimants are not entitled to the protection of the constitution, the law and their relief. Upon service of the respective counter affidavits of the Defendants on the Claimants, the Claimants filed a further affidavit in support of the Originating Summons. It is also deposed to by the 1st Claimant. The further affidavit consists of 40 paragraphs wherein it was deposed that the tenure of Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo as members of the 3rd Defendant, having regard to the judgment in Exhibit 12, would have expired in July, 2015. After the judgment, there was reluctance by the 1st Defendant to accept Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo as members of the 3rd Defendant but the leadership of the Nigerian Bar Association, Owerri Branch intervened and at a meeting held sometime in July, 2013, the 2nd Defendant gave out copies of a written terms of settlement and a joint resignation letter signed by Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O.c. Ndubizu and Hon. Chief Nkem Nwankwo to show that the matter had been resolved amicably. When the 1st and 2nd Defendants approached the Claimants in late 2013 to accept appointment as members of the 3rd Defendant, they represented to the Claimants that the issue with Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O.c. Ndubizu and Hon. Chief Nkem Nwankwo had been settled and they had resigned their appointments. The 1st Claimant said when the Defendants stated in their counter affidavit that Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo did not resign their appointments until 2015, he approached Hon. Chief Nkem Nwankwo on the allegation. Hon. Chief Nkem Nwankwo informed the 1st Claimant that after the said judgment and following an acceptable settlement between the parties in that case, the 2nd Defendant wrote him and the other members a letter titled “RE: TERMS OF SETTLEMENT” and dated 4th July, 2013. Hon. Chief Nkem Nwankwo also told the 1st Claimant that they also signed and submitted a joint letter of resignation of their membership of the 3rd Defendant dated 5th July and they have collected their entitlements from the office of the 2nd Defendant. The terms of settlement referred to by the deponent and the joint resignation letter of Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo are annexed as Exhibits thirteen and fourteen respectively to the further affidavit. It is further deposed by the 1st Claimant that the tenure of Hon. Justice J. Obasi Iwuagwu, Prof. T. O. C. Ndubizu and Hon. Chief Nkem Nwankwo had ceased before the Claimants were appointed by the 1st Defendant as members of the 3rd Defendant in March, 2014. The 1st Defendant too knew that the tenure of Hon. Justice J. Obasi Iwuagwu, Prof. Thomas O. C. Ndubizu and Hon. Chief Nkem Nwankwo ended at the time the Claimants were appointed as members of the 3rd Defendant to replace them. The tenure of Barrister C. E. Igwe expired in 2012 while Hon. Justice J. Obasi Iwuagwu, Prof. T.O.C. Ndubizu and Hon. Chief Nkem Nwankwo resigned from office in 2013 but were paid their entitlements up to 2015. The appointments of the Claimants as members of the 3rd Defendants were not made in error or by mistake. Their appointment as members of the 3rd Defendant was regular since the Hon. Justice J. Obasi Iwuagwu, Prof. T.O.C. Ndubizu and Hon. Chief Nkem Nwankwo had resigned their appointments before the Claimants were appointed. Therefore, the Claimants were appointed into vacant membership of the 3rd Defendant and did not usurp the offices of their predecessors who had resigned from being members of the 3rd Defendant. The deponent mentioned the affidavit deposed by Hon. Chief Nkem Nwankwo in this court to confirm that they resigned their membership of the 3rd Defendant. The affidavit is exhibit fifteen. The deponent added that the appointment of the 4th, 5th, 6th and 7th Defendants was done during the pendency of the Claimants’ tenure which will expire in 2019. The affidavit of Hon. Chief Nkem Nwankwo was filed along with the Claimants’ further affidavit. It is of 7 paragraphs and was sworn in this court on 21st March 2017. The Claimants filed a reply address in support of their further affidavit in rebuttal to the fresh points raised in the Defendants’ affidavits and written addresses’ In the said address, counsel for the Claimants succinctly discussed the first to third implications of the Defendants’ false claims. According to the Claimants, since the parties are ad idem that the tenure of Barrister C. E. Igwe expired in 2012, it follows that there was at least one vacancy in the membership of the 3rd Defendant, and that means at least one of the Claimants was properly appointed to fill that vacancy. Counsel urged the court to regard the 1st to 7th Defendants as meddlesome interlopers with regard to their assertion that the rights of the former members were infringed. In the absence of any challenge to the appointment of the Claimants by the former members, there is a presumption of regularity. See GOVERNOR, EKITI STATE vs. OJO (2006)17 NWLR (Pt. 1007) 95, 119E-F. The consequence of the presumption of regularity of the Claimants’ appointment is that their removal must necessarily be in compliance with Section 201(1) of the Constitution. Counsel submitted that the Defendants are estopped from raising the invalidity of the appointment of the Claimants. On this point, counsel cited Section 169 of the Evidence Act and the case of OKONKWO vs. KPAJIE (1992) 2 NWLR (Pt. 226) 633, 655E-F. Counsel urged that for each and every reason adduced by the Claimants in all the segments of the reply written address, buttressed by their affidavit evidence and relevant authorities, the Court should give judgment for the Claimants. On 28th March 2017, this court granted leave to the Defendants to react to the further affidavit filed by the Claimants. Pursuant to that order of court, the 1st to 3rd Defendants filed a process they titled “further counter affidavit― on 5th April 2017 while the 4th to 7th Defendants filed one titled “further affidavit in opposition― on 6th April 2017. These processes were deemed properly filed and served on 6th April 2017. The further counter affidavit of the 1st, 2nd and 3rd Defendants was deposed to by the same Bruno Nwachukwu who deposed to the initial counter affidavit of these Defendants. He averred that there was no time the 1st and 2nd Defendants met with the Claimants in Suit HOW/683/2011 for the purpose of resolving any logjam occasioned by Exhibit 12 because the matter in that suit was not settled out of court. Exhibits 13 and 14 were afterthought as the said resignation letter was neither delivered to nor received by the 1st to 3rd Defendants from the former members of the 3rd Defendant. The 2nd Defendant never gave the 1st Claimant Exhibits 13 and 14 and at no time did the 1st and 2nd Defendants make representation to the Claimants that the 1st and 2nd Defendants have settled with the former members of the 3rd Defendant or that the former members had resigned their appointments. Hon. Chief Nkem Nwankwo has no business in this suit and his affidavit was made by the Claimants to support their case. The former members of the 3rd Defendant in suit HOW/683/2011 received their entitlements up to 28th July, 2015 when their tenure expired by operation of law and by virtue of the judgment in Exhibit 12. The learned counsel to the 1st to 3rd defendants filed a further written address where he urged the Court to strike out paragraphs 11(g), 13, 14, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 36 and 37 of the Further Affidavit for offending the provision of Section 115(2) of the Evidence Act, 2011 because they were objections, prayer or legal argument or conclusions. He contended that Exhibit 13 which purports to be a letter from the 2nd Defendant ought to be a public document and it was not certified as required by law and should therefore be discountenanced. He cited the case of PA UMOGBAI &ORS vs. PA AIYEMHOBA &ORS (2002) FWLR (Pt. 132) 192 @198; THE HON. JUSTICE E. O. ARAKA vs. THE HON. JUSTICE DON EGBUE (2003) 7 S. C. 75 165 @ 82, 84. Counsel submitted that the Claimants relied heavily on Exhibit 14 in a desperate bid to justify their wrongful appointment and that the most pertinent question to ask was when the purported letter of resignation of the former members of the 3rd Defendant written. They referred the court to the date on the alleged letter of resignation dated “05 – 07 – 20 …. ” and stated that this was very material. A closer look at Exhibit 14 reveals that no mention was made of Exhibit 13 and that it was being mentioned for the first time in the Claimants’ Further Affidavit. Counsel argued that the purported writers of Exhibit 14 claimed that they were tendering their resignation as members of the 3rd Defendant “In consideration of the appeal from many well-meaning citizens of Imo State and Igboland, and in other to remove Imo State from its present pariah status before the NJC for refusing to obey court orders, … ” According to counsel, Exhibits 13 and 14 are contradictory and ought not to be given any probative value. The currency of the tenure of the appointment of the former members of the 3rd Defendant was clearly determined by the Court and terminated on 28thJuly, 2015. The Claimants in this suit at all times material to this suit knew that the duration of the appointment was 5years and that it expired on 28th July, 2015. In reply to the Claimants’ argument in paragraph 2.01 to 2.05 of their reply, counsel contended that the Claimants’ argument is speculative and that the Claimants conceded that the appointment of three out of four members is tainted with illegality. The Claimants did not state which particular Claimant whose appointment is valid and the Honorable Court cannot make guesses for the Claimants neither would the Court pick and choose who among the Claimants has a valid appointment. Based on the concession of the Claimants, it is only the particular member who claims to possess a valid appointment that has the competence to bring this action and the Court has no option than to dismiss the entire suit. According to counsel, the argument in paragraph 3.01 to 3.04 of the Claimants reply address is misleading and should be discountenanced and that it is the constitutional power of the 1st Defendant to appoint non-statutory members of the 3rd Defendant which he exercised by appointing the former members who were the Claimants in Suit No. HOW/683/2011. Any issue pertaining to the infringement or non-infringement of that appointment directly concerns the 1st – 3rd Defendants who possess the requisite locus standi to challenge it, more so the subsisting tenure of those members has invalidated the appointment of the Claimants in the instant suit. The 1st – 3rd Defendants cannot in anyway be regarded as strangers to the subsistence of the tenure of the former members of the 3rd Defendant. The Claimants in this suit had totally misconceived the 1st – 3rd Defendants case. They also submitted that the 1st – 3rd Defendants are not relying on Jus tertii contrary to the Claimants contentions in paragraph 3.03 of their reply address. The 1st – 3rd Defendants are rather relying on a subsisting judgment (Exhibit 12) of a court of competent jurisdiction which they are bound to obey as parties to the suit and that the cases cited in support of the principle of Jus tertii were cited out of context. The argument in paragraph 4.01 to 4.14 of the Claimants reply address should be discountenanced for being misleading and misconceived argument and that the 1st to 3rd Defendants have sufficiently shown in their Counter-Affidavit and Further Counter- Affidavit that the appointment of the Claimants was made in error and in disobedience to the orders of Court of competent jurisdiction and therefore an irregular appointment which cannot be put within the purview of Section 168(1) of the Evidence Act, 2011 contrary to the contention of the Claimants. Counsel submitted that an appointment shown to be manifestly done in disobedience to orders of court as in the instant case ought to be presumed irregular appointment and not a regular appointment as being canvassed by the Claimants. He went on that it is not mandatory that the 1stDefendant in exercise of its constitutional power must state the reason for the dissolution of the 3rd Defendant. The Claimants at all times material to this suit knew that the duration of the tenure of the former members of the 3rd Defendants was 5years and that it expired on 28th July, 2015 and that it is the order of court in Exhibit 12 that the 1st Defendant is not competent to appoint other persons as members of the 3rd Defendant during the currency of the tenure of the former members and it would be erroneous to argue as did by the Claimants that the 1st – 3rd Defendants led the Claimants to believe that their appointment was lawful. Counsel argued that parties cannot by consent confer jurisdiction on the court and that the erroneous appointment of the Claimants cannot be justified by the work the Claimants allegedly did in furtherance of the illegality of their appointment. According to counsel, the void or tainted appointment of the Claimants was an operation of law and not the making of the 1st – 3rd Defendants. The Claimants’ likening this situation to a contractual relationship is most erroneous and totally misconceived. The cases cited in support of the principle of contractual relationship were cited out of context. The argument in paragraph 5.01 to 5.21 of the Claimants reply address which was hinged on Exhibits 13, 14 and 15 attached to the Further Affidavit of the Claimants has been adequately attended to in paragraph 2.1 to 2.5 of this written address above and to avoid repetition they adopted same as part of their argument on the issues raised by the Claimants in paragraph 5.01 to 5.25 of the reply address. Counsel referred the court to the affidavit evidence in paragraphs 8(i) (xi), 9 and 10 of the 1st – 3rd Defendants Further Counter-Affidavit which debunked the assertions of the Claimants in paragraphs 5.06 to 5.08 of the reply address. For any evidence to be cogent, compelling and conclusive it must first cross the threshold of admissibility under Section 104(1) and (2) of the Evidence Act, 2011 which Exhibits 13, 14 and 15 attached to the Further Affidavit of the Claimant and relied heavily by the Claimants in their argument have failed to cross and therefore have no probative value attached. It was the submission of counsel that the 1st – 3rd Defendants have no reason to and did not withhold any facts contrary to the assertion of the Claimants that Exhibits 13 and 14 are matters within the knowledge of the 1st – 3rdDefendants and that this is most incorrect. The 1st – 3rd Defendants are seeing the alleged documents for the first time in this suit, therefore the argument of the Claimants in paragraph 5.12 of the reply address is misconceived and section 167(d) of the Evidence Act cited in support does not apply. The currency of the tenure of the appointment of the former members of the 3rd Defendant was clearly determined by the Honorable Court and it terminated on 28thJuly, 2015. The Claimants in this suit at all times material to this suit knew that the duration of the appointment was 5years and that it expired on 28thJuly, 2015. According to counsel, it is easily discernible from the Counter-Affidavit and Further Counter-Affidavit that the state of affairs asserted by the Claimants are not only erroneous but misconceived. The further counter affidavit of the 4th to 7th Defendants was deposed to by the 6th Defendant. He stated that he referred the affidavit of Nkem Nwankwo, the terms of settlement and the letter of resignation to Dr. Pascal Obi, the Principal Secretary to the 1st Defendant and George Eche, the Secretary to the Government of Imo State, who are the custodians of the official records and documents of Imo State Government. But these persons informed him that after a very diligent search, no such documents exist in the official records of the Government of Imo State. In a meeting of the 3rd Defendant held on 27th January 2017, the issue of whether Nkem Nwankwo and the other former members resigned was discussed but the 2nd Defendant and the chairman of the 3rd Defendant did not inform the deponent that those former members resigned their appointments. The judgment in Exhibit 12 has been appealed by the Government of Imo State which appeal has not been withdrawn. Salaries and allowances of political appointees including the members of the 3rd Defendant are paid from the office of the 1st Defendant. There is nothing on the Claimants Exhibit Fourteen showing receipt by any official of Government of Imo State. The further counter affidavit of the 4th to 7th defendants was accompanied by a written address. The learned counsel to the 4th to 7th defendants cited the case of BENSON vs. ONITIRI (1960) SCNLR 177 at 189 -190; ADEFEMI vs. ABEGUNDE (2004) 15 NWLR (Pt. 895) at Pg. 28; WAEC vs. OSHIONEBO (2006) 12 NWLR (Pt. 994) at 258 at 272. He cited Sections 102 and 103 (3) of the Evidence Act and submitted that Exhibit 14 is a public document and proper custody of the document must be proved inter alia. According to counsel, Exhibit 13 and 14 cannot be traced from the Government of Imo State records. Counsel cited the case of OGBAHON vs. REGISTERED TRUSTEE (2002) NWLR (Pt. 749) All NLR 183 to further buttress their point. He pointed out the strange undated documents requiring great scrutiny. Counsel urged the court to reject the Claimants Exhibit 13 and 14 because they are secondary evidence. On the 6th of April 2017, the court granted the Claimants leave to orally give their Reply on points of law. The Claimants submitted that they had shown that they had rendered services to Imo State Government and also performed their statutory duties and functions in the Judicial Service Commission. They urged the court to grant all the reliefs of the Claimant. By way of reply in relation to the further affidavit filed by the 4th to 7th Defendant document called Exhibit A, they submitted that that this was supposed to be a document emanating from the Government of Imo State and a public document by virtue of Section S. 104 (1) of the Evidence Act and that for it to be admissible and be put into use by the court it must be certified and its legal fees paid neither was the name or the position of the official stated and there was no seal and consequentially Exhibit A was inadmissible citing the case of TABIK INVESTMENT LTD VS. GTBANK LTD (2001) 17 NWLR (Pt. 1276); UDOM vs. UMANA (No 1) (2016) 12 NWLR (Pt. 1526) Pg. 176. They urged the court to disregard Exhibit A. they opined that paragraphs 3 & 6 of the further Affidavit of the 4th to 7th Defendant contained no place, date and time of the receipt of the information which offends Section 115 of the Evidence Act citing AHMED VS CBN (2013) 11 NWLR (PT 1365) Pg 352 and BAMAYI vs. THE STATE (2001) 8 NWLR (Pt. 715) Pg. 270 they urged the court to so hold. On paragraphs 4 & 5 of the further counter affidavit of the 6th Defendant, Claimants counsel submitted the only way to prove proceedings of court is by the production of the said proceedings per Section 128 (1) of the Evidence Act 2011. The defence counsel agreed without conceding that the Claimants were members of the 3rd Defendant and that by that concession the only way to remove a member of the Judicial Service Commission is as provided by the Constitution. With respect to the submission of counsel, the Claimants submitted that the appointment of the Claimants was not an afterthought referring to Exhibit 7, 8, 9 & 10. With reference to paragraphs 8 & 9 of the 1st to 3rd Defendants further counter affidavit, the Claimants submitted that there is no evidence of payment e.g. voucher, pay slip or bank statement in proof. They claimed that Exhibit 13 attached to their further affidavit had not been denied or challenged and that it was a letter written to four gentlemen and not a public document citing PDP vs. INEC (2014) 17 NWLR (Pt. 1437) Pg 523 at 562 – 563 (SC). They submitted that the affidavit of Hon. Chief Nkem Nwankwo Exhibit 15 lends credence to Exhibit 14. Exhibit 14 is not a public document and that no oral evidence was necessary. They also submitted that the Defendants did not challenge or controvert the affidavit of the Hon. Chief Nkem Nwankwo urging the court to deem the facts stated therein as admitted by the Defendants. They submitted that the judgment was delivered in 2012 while the Claimants were appointed in 2014. They further urged the court to discountenance all the submissions of the defence counsels and grant the reliefs of the Claimants. COURT’S DECISION In paragraph 24 of the counter affidavit of the 4th, 5th, 6th and 7th Defendants to the originating summons, it was averred that there are many issues in controversy in this matter which will be better proved by oral evidence. Further in his address in support of counter affidavit, learned counsel to the 4th to 7th Defendants argued that although this suit was initiated under originating summons, there are very serious dispute of facts in this case which ought to be resolved by calling oral evidence. Counsel urged the court to invoke the provision of Order 3 Rule 17 (1), (2) of the 2017 rules of this court. The contention of the 4th to 7th Defendants, in effect, is that originating summons is not appropriate for this action and it should be converted to proceedings under Complaint. In Order 3 Rule 3 of the NICN Rules 2017, proceedings which can be commenced by way of originating summons are those principally on interpretation of the constitution, enactments, agreements, or any other instrument relating to matters on which this court has jurisdiction. A look at the questions set by the Claimants for determination, the reliefs sought thereby and the facts of the case, this case is basically to construe the provisions of Sections 197, 199 and 201 the 1999 Constitution, as amended, and determine whether the dissolution of the 3rd Defendant and the removal of the Claimants as members of the 3rd Defendant complied with the provisions of the Constitution. In my view, it is a matter that can be heard by way of Originating Summons. I have also examined the affidavits of the various parties. I have not seen any substantial dispute of facts as to enable this court invoke Order 3, Rule 17 (1) and (2) of the Rules and convert the proceedings to one under a Complaint. Commencement of the action by way of originating summons is proper. Therefore, this matter shall be heard and determined as originating summons proceedings. Having examined the various affidavits of the parties in this suit together with the documents exhibited thereto and having also considered the questions raised by the Claimants for determination in the originating summons and the arguments of counsels to the respective parties in the written addresses, it is my view that the issues which arise for determination in this action are the following: 1. Whether the dissolution of the 3rd Defendant and removal of the Claimants as members of the 3rd Defendant by the 1st Defendant in the letter dated 31st October, 2016 with reference no. SGI/S.209/S.1/X was constitutional. 2. Whether the Claimants are entitled to the reliefs they sought in this suit. ISSUE 1: In Exhibits one, two, three and four annexed to the Claimants’ affidavit in support of the originating summons, the Claimants were appointed as non-statutory members of the 3rd Defendant on 17th March 2014 by the 1st Defendant. On 31st October 2016, each of the Claimants received Exhibits seven, eight, nine and ten respectively from the office of the Secretary to the Government of Imo State. The letters, except the names of the recipients which are different, the contents are the same. They also have the same date of 31st October, 2016 and reference number “SGI/S.209/S.1/X. The content of letters is as follows: “RE: DISSOLUTION OF THE JUDICIAL SERVICE COMMISSION I wish to refer to the above matter and to convey the dissolution of the Judicial Service Commission to you. Government appreciates your service and advice, as a former member of the Commission and wishes you well in your future endeavours. Please accept the deep respect and gratitude of His Excellency, the Governor and the people of Imo State. (Signed) Sir Eche George E.U. (FCTI, FCA, NPOM) Secretary to the Government of Imo State”. Clearly, what was communicated to the Claimants in the letters are that the Imo State Judicial Service Commission (the 3rd Defendant) has been dissolved and the reference to the Claimants as “former― members of the 3rd Defendant indicate that the Claimants were considered removed as members of the 3rd Defendant. This letter is the Claimants’ cause of action in this suit. Their complaint is that the 1st Defendant does not have the power to dissolve the 3rd Defendant being a body established by the Constitution nor can the 1st Defendant lawfully remove a member of the 3rd Defendant before the expiration of the tenure of office without observing the steps constitutionally provided for the purpose. Hence, the Claimants took out this action seeking the court to determine, among other questions, whether having regard to the provisions of Sections 197(1)(c), 199(1)(c) and 201(1), (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st Defendant has the power to dissolve the Imo State Judicial Service Commission or remove the Claimants from office as members of the Imo State Judicial Service Commission without complying strictly with the provisions of Section 201(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In the various counter affidavits of the Defendants, they did not deny the fact that the Claimants were appointed by the 1st Defendant as members of the 3rd Defendant on 17th March 2014. The Defendants did not also deny the fact that the letters referred to as Exhibits seven, eight, nine and ten were issued to the Claimants. The Judicial Service Commission of the States, the 3rd Defendant in this case with respect to Imo State, was established by the Constitution. Section 197(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended (subsequently herein referred to as The Constitution) provides: “(1) There shall be established for each State of the Federation the following bodies, namely- (a) ——————– (b) ——————— (c) State Judicial Service Commission.― Furthermore, appointments into the 3rd Defendant, membership of the 3rd Defendant, tenure of office of members and how members of the 3rd Defendant are removed from office are all governed by the Constitution. Accordingly, whether or not the 1st defendant has power to dissolve the 3rd defendant or remove members of the 3rd defendant from office depends on the provision of the Constitution. Provisions in the Constitution relating to the 3rd Defendant can be found in Sections 197, 198, 199, 200, 201, 202 203, 204, 205 and paragraphs 5 and 6 of part II of the Third Schedule. For the purpose of this judgment, I think there is need to set out the provisions of the Constitution relevant for the determination of the issue at hand. Section 198: 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. Section 199: (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. Section 201: (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. Third Schedule, Part II: Paragraph 5: A state Judicial Service Commission shall comprise the following members- (a) The Chief Judge of the State who shall be Chairman; (b) The Attorney-General of the State; (c) The Grand Khadi of the Sharia Court of Appeal of the State; (d) The President of the Customary Court of Appeal of the State; (e) Two members, who are legal practitioners, and who have been qualified to
