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National Industrial Court

Hon. Etim Sam kasio okpo -VS- Government of Akwa-Ibom State &

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

 

DATE: 17TH JUNE, 2019               SUIT NO: NICN/UY/24/2016

 

BETWEEN:

 

ETIM SAM KAISO OKPO             ..………………………..    CLAIMANT

 

AND

 

  1. THE HON. ATTORNEY GENERAL AND

COMMISSIONER OF JUSTICE OF AKWA IBOM        DEFENDANTS

STATE

  1. AKWA IBOM STATE GOVERNMENT

 

REPRESENTATION

 

GODWIN E. UDOH FOR THE CLAIMANT.

IQUA ABIA FOR THE DEFENDANT.

JUDGMENT

The Claimant was appointed a member of the Akwa Ibom State Civil Service Commission by the Defendants by a letter dated 23rd October, 2013 but effective from the 22ndof October, 2013. The Claimant discharged his duties as member of the House of Assembly Service Commission diligently and the defendants paid the salary and allowances of the Claimant regularly until August, 2015 when thepayments were stopped. In spite this, the Claimant continued to work for the Defendants until 14thSeptember, 2016 when the Defendants without notice to the Claimant or any member of the Commission, appointed a new Chairman and members to replace the Claimant and other members of the Commission by publications in the media. Aggrieved, the Claimant took out a Complaint on 6thOctober, 2016accompanied by Statement of Facts, Statement on oath and List of documents claiming against the defendants jointly and severally as follows:

(a)       A declaration that the tenure of office of the Claimant as member of the Akwa Ibom State Civil Service Commission is as contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and can only be terminated in accordance with the provision of the Constitution.

(b)       A declaration that the appointment of new members into the Akwa Ibom State Civil Service Commission to replace the Claimant as a member thereof before the expiration of the tenure of the Claimant and the refusal of the defendants to pay the salary, fringe benefit and allowances of the Claimant is contrary to the provisions of the Public Office Holders (Remuneration) Law cap. 101 Laws of Akwa Ibom State, 2000 and the Public Office Holders (Remuneration) (Amendment) Law, 2007 which came into force on 1st February, 2007and the Constitution of the Federal Republic of Nigeria 1999 (as amended).

(c)       A declaration that the Claimant is entitled to the arrears of salary, allowances and fringe benefits due to him as member of the Akwa Ibom State Civil Service Commission from the month of August, 2015 when the defendants stopped paying the salary and allowances to the September, 2016 when the defendants appointed new members into the Commission.

(d)       A declaration that the Claimant is entitled to be paid all the salary, allowances and fringe benefits and the severance package due to him as member of the Akwa Ibom State Civil Service Commission up to and including October, 2018 when the tenure of his office would have expired by law.

(e)       N8,639,061.20 (Eight Million, Six Hundred and Thirty Nine Thousand, Sixty One Naira, twenty kobo) being the arrears of salary, allowances and fringe benefits due and payable to the claimant by the defendants from August 2015 till September, 2016 when the defendants stopped paying the claimant’s salary, allowances and fringe benefits.

(f)        N14,809,819.20 (Fourteen Million, Eight Hundred and Nine Thousand, Eight Hundred and Eight Hundred and Nineteen Naira, Twenty Kobo) being the salary, allowances and fringe benefits due to the Claimant from October, 2016 till October, 2018 when the tenure of the Claimant would have expired.

(g)       N3,750,330.00 (Three Million, Seven Hundred and Fifty Thousand, Three Hundred and Thirty Naira) being the severance package due to the Claimant on the completion of his tenure as member of Akwa Ibom State Civil Service Commission on October, 2018.

(h)       N500,044.00 (Five Hundred and Forty Four Naira) being annual leave grant due and payable to the Claimant for 2015, 2016, 2017 and 2018 at N125,011 per annum.

In response, the Defendant filed a Memorandum of Conditional Appearance on the 20thOctober, 2016 which was followed by a Notice of Preliminary Objection on the ground that the suit was statute barred filed on the 23rd November, 2016. The objection was dismissed on 29th June, 2017. Thereafter, the Defendant filed on 28th September, 2017 a motion for Stay of Proceedings pending the determination of the interlocutory appeal which was also dismissed on 20th February, 2018. By the leave of court on 21st May, 2018,the Statement of Defence together with Witness Statement on Oath, List of Witness and List of Documents filed on 18th April, 2018 were deemed properly filed and served.The Claimant filed a Reply to the Statement of Defence on 30th May, 2018 thereby setting the stage for trial which commenced in earnest on 15th October, 2018.

At the trial, the Claimant testified for himself as CW and tendered one (1) exhibit in spite of front loading two (2) other documents, to wit, Payslip and Newspaper publication. One Mr. Samuel EnoOkon, a litigation officer in the Chambers of Attorney General, testified for the Defendants as DW.

 

The Case of the Claimant

The Claimant was appointed a member of the Akwa Ibom State Civil Service Commission by the Defendants by letter of 23rd October, 2013 signed by Udom G. Emmanuel, the former Secretary of the State Government effective from the 22ndof October, 2013. By the provision of the Constitution of the Federal Republic of Nigeria 1999, particularly sections 198, 199 (1) (c) and 201 (1), (2), the tenure of the Claimant’s appointment as member of the Akwa Ibom State Civil Service Commission was to be for a period of five (5) years ending on the 21stday of October, 2018. The Claimant was paid a salary and fringe benefit after tax of N617,075.80 per month. Apart from the salary and fringe benefit due to the Claimant, hewas also entitled to Annual leave grant of N125,001 per annumand Severance allowanceof N3,750,330.00. These are statutory allowances as contained in the Public and Political Office Holders (Remuneration) Law Cap. 101 Laws of Akwa Ibom State, 2000 and the Public and Political office Holders (Remuneration) (Amendment) Law, 2007.

It was the case of the Claimant that he discharged his duties diligently and the defendants paid his salaries and allowances regularly until August, 2015. The Defendants also failed and neglected to pay the Claimant his annual leave grant for two (2) years (2015 and 2016) in the sum of N250,002.00 at the rate of N125,001 per annum. And despite the stoppage of salaries and allowances, the claimant continued working as member of the Commission.

The Claimant stated that on the 14thSeptember, 2016 and without notice to the claimant or any other member of the Akwa Ibom State Civil Service Commission, the defendants appointed a new Chairman and members for the Akwa Ibom State Civil Service Commission to replace the Claimant and other members of the Commission and published the appointment in the media including Newspaper, Radio, Television and circulars.

The grudge of the Claimant was that at the time the defendants appointed new members into the Akwa Ibom State Civil Service Commission, the tenure of office of the Claimant as member of the Commission had not expired as it had two (2) years and two (2) months remaining. Not only that, the appointment of new members was not done in accordance with the law. It is therefore the contention of the Claimant that at the time of the appointment of new members into Commission, the defendants were owing the Claimant arrears of salary, fringe benefit and allowances of fourteen (14) months.The Claimant was also entitled to the severance package on the completion of his tenure of office.

 

 

The Case of the Defendants

The case of the Defendants can better be understood or appreciated on a reproduction of the salient paragraphs of the facts as follows:

  1. That the Claimant is not a member of the Akwa Ibom State Civil Service Commission.

  1. That paragraphs 2, 3 and 4 of the Statement of Facts are admitted only to the extent that the Claimant was paid the salary of N625,004.92 per month.

  1. That in addition to the laws cited by the Claimants, the Claimant’s appointment was also governed by Section 14 (4) of the 1999 Constitution, Section 197 (3) of the 1999 Constitution and Section 11 (1) of part 1 of the Fifth Schedule to the 1999 Constitution.

  1. That the Claimant failed and neglected to submit to the Code of Conduct Bureau a written declaration of all his properties, assets and liabilities and those of his unmarried children under the age of eighteen years.

  1. That this necessitated the nomination of new members to replace the Claimants and other members of the State House of Assembly Service Commission (sic).

  1. That in addition to above stated facts, and a careful perusal of Section 197 (3) and Section 14 (4) of the 1999 Constitution, the State Civil Service Commission as previously constituted did not recognize the diversity of the people of the State, thus in order to promote a sense of belonging and loyalty among all the people, the Governor nominated new chairman and members in line with Section 14 (4) of the Constitution and same were confirmed by the Akwa Ibom State House of Assembly.

  1. That the Claimant could not have discharged his duties diligently without conforming to the provisions of the Constitution. The Claimant’s salary was stopped when the Claimant refused to declare his assets as required by law.

  1. That the Claimant is not entitled to leave grant or any allowance at all.

  1. That the Claimant had stopped work since August, 2015, and is therefore not entitled to salaries beyond July, 2015.

  1. That the said publication was admitted only to the extent that it heralded the appointments of the new Chairman and members of Akwa Ibom State House of Assembly Service Commission (sic).

  1. That the Claimant’s appointment had expired since July, 2015 and the new Chairman and members were duly nominated and their nominations were confirmed by the State House of Assembly.

  1. That the Claimant is not entitled to severance package or allowance at all or any of the Claims listed and numbered as 17 (a) to (h) in the Statement of Facts.

 

Reply to Statement of Defence

By way of reply to the Statement of Defence, the Claimant stated as follows:

  1. That he was a member of the Akwa Ibom State Civil Service Commission as at the time of filing this suit and remain so until the 21stday of October, 2017 when the tenure of his office expired.

  1. That he duly completed and submitted the assets declaration forms to the Code of Conduct Bureau and a written declaration of his assets and properties in compliance with the directive immediately after the appointment.

 

  1. That due process was not followed in that if the Defendants felt that the appointment of the Claimant and other members of the Commission was irregular, the Defendants would have complied with the law by approaching the Akwa Ibom State House of Assembly for proper action and same would have been communicated to all the appointees including the Claimant.

  1. That his appointment did not expire in July, 2015 but that his appointment was for a period of five (5) years which ended on the 21stday of October, 2018 and that he is entitled to his severance package, leave grant and all other allowances and entitlements and all the claims in paragraphs 17 (a) to (h) of the Statement of Facts.

 

Defendants’ Submission:

The Defendants formulated two (2) issues for determination, to wit:

  1. Having regard to the processes filed by the Claimant and the evidence before this honourable court, whether the appointment of new members to replace the Claimant and other members was constitutional?
  2. Whether the Claimant is entitled to salary for work not done and severance package, having not completed his tenure as a member of the Akwa Ibom State Civil Service Commission?

Issue No. 1:               Having regard to the processes filed by the Claimant and the evidence before this honourable court, whether the appointment of new members to replace the Claimant and other members was constitutional?

On this issue, it is the submission of the Defendants that the appointment of new member to replace the Claimant was constitutional and that it is the responsibility of a public officer to submit to the Code of Conduct Bureau a written declaration of all his assets and liabilities and those of his unmarried children under the age of eighteen years. The Defendants cited Section 11 (l) (a) &(b) of Part I to the Fifth Schedule of the 1999 Constitution (as amended) to the effect that:

“Subject to the provisions of this Constitution, every public officer shall within three months after coming into force of this Code of Conduct or immediately after taking office ….. submit to the Code of Conduct Bureau a written declaration of all his assets and liabilities and those of his unmarried children under the age of eighteen years.”

 

Citing the Supreme Court case of A.G Abia v. A.G Federation (2006) 16 NWLR (Pt. 1005) 265 SC on the supremacy ofConstitution in which all other legislations take their hierarchy and legitimacy, the Defendant submitted that it is the responsibility of every Nigerian, including the Claimant, to uphold the provisions of the Constitution. And that the use of ‘shall’ in Section 11 (1) (a) &(b) of Part I to the Fifth Schedule of the 1999 Constitution (as amended) is not permissive but mandatory. The Defendants went on to state that the Supreme Court in interpreting a similar word in Section 285 (6) of the 1999 Constitution (as amended) captured the essence of the word per Fabiyi, JSC inUgba v. Suswan&Ors(2012) LPELR) 9726 (SC), page 36 paras B -D) thus:

“Let me observe here that the word ‘shall’ has been employed by the lawmakers of the constitution which is the grundnorm. It signifies a command. The envisaged act must be complied with.”

The Defendant posited that the Claimant was a Public Officer by virtue of Exhibit CW 1 and Section 16 Part II of the Fifth Schedule to the 1999 Constitution (as amended), which classified Chairmen, members and staff of permanent commissions or councils appointed on full time basis as public officers for the purposes of the Code of Conduct. It is therefore the submission of the Defendant that the Claimant as a member of the Akwa Ibom State Civil Service Commission had a statutory obligation to declare his assets and liabilities.

To the Defendant the question that readily comes to mind is whether the Claimant has proved to this court that he declared his assets and liabilities as required by law? Answering this question with a resounding no, the Defendants submitted that the law is trite that he who asserts bears the burden of proving the truth of his assertion relying on Section 136 (1) Evidence Act and the case of Unilorin&Ors v. Obayan (2018) LPELR – 43910 (SC) Page 14 paras B­E.The Defendants further submitted that the Claimant having stated in paragraph 2 of his Additional Statement on Oath filed on 30/05/2018 that he had submitted a written declaration of his assets and liabilities to the Code of Conduct Bureau, the burden of proving same rested with him (the Claimant).

According to the Defendants by virtue of Section 102 of the Evidence Act, a written declaration of assets and liabilities submitted to the Code of Conduct Bureau is a public document which requires proveby the production of the original itself as primary evidence or by secondary evidence, which is by a duly certified true copy. This is by the combined effect of sections 86, 87, 88 and 104 of the Evidence Act.

It is also the argument of the Defendant that, since the Claimant neither tendered the original copy of a written declaration of his assets and liabilities nor a certified true copy of sameor payment of the prescribed fees for the certified true copy, the Claimant did not submit his written declaration of assets and liabilities to the Code of Conduct Bureau as demanded by the Constitution of the Federal Republic of Nigeria (as amended).

Finally on the issue, the Defendants submitted that the executive Governor of Akwa Ibom State was therefore right in nominating another person as member of the Akwa Ibom State Civil Service Commission. To the Defendants this was necessitated by the Oath of Office taken by the Governor as provided for under the7thSchedule of the 1999 Constitution (as amended):

“…..that I will to the best of my ability preserve, protect and defend the Constitution of the Federal Republic of Nigeria.”

Issue No. 2:               Whether the Claimant is entitled to salary for work not done and severance package, having not completed his tenure as a member of the Akwa Ibom State Civil Service Commission?

The Defendants answered this in the negative and submitted that the Claimant is not entitled to salary for the period he did not work and advanced the definition of salary in Court of Appeal case of Intels (Nigeria) Limited. &Ors v. Bassey, (2011) LPELR – 4326 (CA) (pg 13 para D), as an agreed or fixed recompense or emolument for work done or services renderedand usually paid to an employee at regular intervals, for instance monthly. The Defendants also provided the definition of salary by Black’s Law Dictionary, online 2nd Edition as a recompense made to a person for his pains and industry in another person’s business.

Applying these definitions on the facts of the instant case, the Defendants maintained that the Claimant in his evidence stated that the Defendants stopped his Salary from August, 2015 to September, 2016 and has not provided evidence to show he worked beyond August, 2015. It is therefore the submission of the Defendants that the Claimant is not entitled to the claim of N14,809,819.20 of Salary and allowances from October 2016 when the Defendants appointed a new member to replace the Claimant to October, 2018 when the tenure of the Claimant would have expired.And since salaries are usually paid for work done and services rendered, and not a jamboree, the Claimant is not entitled to salaries for the period he did not work particularly when the 2nd Defendant is paying the new member appointed to replace the Claimant, thus cannot pay twice for the same services. The Defendants stated that the claim of salaries by the Claimant for the remaining period of his employment cut short by the appointment of a new member is akin to a claim of an employee that he be paid his salary until age of retirement even though he is no longer in the employment of the employers. The Claimant cannot therefore sit down with arms folded hoping for his salary from September 2015 to January, 2018 to fall like manna from heaven.

On the severance allowance in the sum of N3,750,330, the Defendants submitted that the Claimant is not entitled to the said sum or any sum at all since, severance allowance is paid to public officers who have completed their tenure of appointment or election. The Defendants invited the court to note that the Claimant in his evidence stated that he did not complete his tenure as a member of the Akwa Ibom State Civil Service Commission.

Similarly, the Defendants submitted that the Claimant is not entitled to leave grant because leave grants are paid to those who have proceeded on annual leave and not paid as a matter of course. The Defendants also noted that Claimant has not exhibited any document to show that he was given approval to proceed on annual leave and that he actually proceeded on annual leave.

Finally, the Defendants submitted that having disregarded the constitutional provision of declaring his asset and liabilities and thereby causing another person to be appointed to replace him, the Claimant is not entitled to any of the reliefs sought, urging the court to dismiss this action with substantial cost.

Claimant’s Submission:

The Claimant formulated two (2) issues for the determination namely:

  1. Whether the appointment of new members of the Akwa Ibom State Civil Service Commission to replace the Claimant without following due process was lawful while the tenure of the Claimant was subsisting?
  2. Whether the Claimant is entitled to his salary, allowances and leave grant for the period of his statutory appointment?

ISSUE No. 1:            Whether the appointment of new members of the Akwa Ibom State Civil Service Commission to replace the Claimant without following due process was lawful while the tenure of the Claimant was subsisting?

For a start, the Claimant submitted that the appointment of new members of the Akwa Ibom State House of Assembly Service Commission without following due process while the tenure of the Claimant was subsisting was most unlawful, illegal and unconstitutional. The Claimant then stated that the Claimant’s appointment was statutory by virtue of section 197 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which established the States Civil Service Commission among other State Executive bodies. The Claimant asserted that the tenure of office of a member of State Civil Service Commission is five (5) years and quoted section 199 (1) (c) of the 1999 Constitution as amended in support:

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-

199 (1) (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.”

On the procedure for the removal of members of the Akwa Ibom State Civil Service Commission, the Claimant referred the Court to section 201 of the 1999 Constitution of the Federal Republic of Nigeria (as amended):

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.

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

The Claimant noted that the word “shall” used in this section is not permissive but mandatory and submitted that it is clear from the evidence in this case that the procedure prescribed for the removal of the Claimant in the section was not followed and as such the Claimant’s purported removal and replacement was illegal, unlawful, null and void. The Claimant noted the non-declaration of assets by the Claimant and the failure to recognize the diversity of the people as the reasons given for the removal of the Claimant and submitted that these reasons were baseless, frivolous, unreasonable and worthless.

There after the Claimant attacked the evidence of the lone witness of the Defendants in the person of Samuel EnoOkon: That the said witness claimed to be a Litigation Officer in the office of the Chambers of the Honourable Attorney General and Commissioner for Justice, Akwa Ibom State. That the said witness was highly discredited in cross examination. That he stated during cross examination that the only place he works is the Chambers of the Attorney General and Commissioner for Justice, Akwa Ibom State as a Litigation Officer and nothing more. That the said witness admitted that he does not work in the Code of Conduct Bureau and as such he is not the one that custodies Assets Declaration Forms. That he has not collected any letter or document from Code of Conduct Bureau stating that the Claimant did not declare his assets. That none of the Defendants has been given any letter or any document that the Claimant did not submit his Assets Declaration Forms. That he is not aware that the Claimant has been tried at Code of Conduct Tribunal for failure to declare his assets. That he had never appeared at Code of Conduct Tribunal as witness in any matter involving the Claimant for non-declaration of assets.

According to the Claimant from the foregoing, it is clear that the Defendants’ witness does not know anything about the Code of Conduct Bureau and the Assets Declaration Forms submitted by the Claimant.

The Claimant also noted that the issue of non-declaration of assets was first raised by the Defendants in their statement of defence filed on the 18th day of April, 2018 and submitted that the law is he who asserts must prove referring to section 136 (1) of the Evidence Act, 2011. It is therefore the submission of the Claimant that since the Defendants asserted that the Claimant did not declare his assets, the burden was on them to prove by producing a letter from Code of Conduct Bureau in that regard, which they failed to do. The Claimant also submitted that the failure by the Defendants to tender any document from Code of Conduct Bureau was because it would not have been favourable to them as envisaged by section 167 (d) of the Evidence Act, 2011.

The Claimant also invited the court to note that the 1st Defendant as the Chief Law Officer of the State did not state that he recommended the prosecution of the Claimant for failure to declare his assets. In maintaining the reasons for his removal as an afterthought, the Claimant emphatically submitted that the laid down procedure for the removal of members of the Akwa Ibom State Service Commission as provided for in section 201 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) was not followed.

Finally on the point, the Claimant urged the court to resolve the issue in favour of the Claimant and to hold that his purported removal as Member of the Akwa Ibom State Civil Service Commission was unlawful, illegal, null and void.

Issue No. 2:               Whether the Claimant is entitled to his salary, allowances and leave grant for the period of his statutory appointment?

On this issue, it is the submission of Claimant that from the evidence available, it is clear that the Claimant whose tenure of office as Member of the Akwa Ibom State Civil Service Commission was subsisting at the time the Defendants purportedly and illegally appointed new members to replace him is entitled to all his salaries and other entitlements for the period of his appointment as if he was still working and performing the duties of his office. The Claimant also submitted that the Defendants fruitlessly tried to prove that the Claimant was not working to no avail for the simple reason their sole witness was ignorant of the facts of this case. The Defendants’ only witness admitted in cross-examination that he never worked in the Civil Service Commission and that the Claimant was not reporting to him, so there was no way he can confirm if the Claimant was working or not.

In the light of the foregoing, the court was urged to resolve the issue in favour of the Claimant and hold that the Claimant is entitled to all his salaries and other entitlements for the period of his appointment as Member, Akwa Ibom State Civil Service Commission from the 22nd day of October, 2013 to the 21st day of October, 2018.

Defendants’ Rejoinder on Points of Law

In response to the submissions of the Claimant’s final address, the Defendant filed what he referred to as “Defendants’ Rejoinder on Points of Law.”

As a rejoinder on points of law, the Defendants submitted that even if the appointment of new a member to replace the Claimant was unlawful, the Claimant is not entitled to arrears of salary, allowances and leave grants. This is because in a legion of cases, particularly Visitor IMSU &Ors v. Okonkwo &Ors (2014) LPELR – 22458 (CA), it is only when an order of reinstatement is made that the employee would be entitled to salaries, emoluments or other allowances due to him as if the unlawful removal never took place. The Defendants further submitted that since the award of salaries and other emoluments flow from reinstatement and since the Claimant in the instant case neither claimed reinstatement nor damages, the Claimant is not entitled to salaries or emoluments for the period he has not worked citing the case of Garuba v. K. I. C. Limited &Ors (2005) LPELR -1310 (SC). To further stress the trite position of the law that a court would not grant to a party relief not claimed, the Defendants advanced quotations from two (2) cases. One, is the case of AG Federation v. A. I. C. Limited (2000) 10 NWLR (Pt. 675) 293 at 305, where the court held:

“It should always be born in mind that a court of law is not a charitable institution. Its duty in civil cases is to render unto everyone according to his proven claim.”

Second, Galinje, JSC, in Edilcon (Nig) Limited. v. UBA Plc (2017) LPELR – 42342 (SC) PP 31-32 para B-F, to the effect that:

 

“A court has no power to make an order or grant a relief which has not been asked for by any of the parties. A court of law may award less, but not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party.”

 

 

Decision of the Court

I have digested the facts of this case as given in the various processes, carefully watch the demeanour of the witnesses and evaluated their evidence as it were. Although the issues raised by the parties are similar, I will adopt the two (2) issues raised by the Claimant for being more specific:

Issue No. 1:   Whether the appointment of new members of the Akwa Ibom State Civil Service Commission to replace the Claimant without following due process was lawful while the tenure of the Claimant was subsisting?

Issue No. 2:   Whether the Claimant is entitled to his salary, allowances and leave grant for the period of his statutory appointment?

Before I delve into the merit of this case, I will like to consider the furore or controversy    generated by the Defendants’ Reply on Points of law. The Defendants argued therein that the reliefs sought by the Claimant can only be supported when an order of reinstatement is granted. And since the Claimant did not claim for reinstatement in this case and the reliefs can only flow from reinstatement, the reliefs cannot be granted, the court not being a Father Christmas. On his part, the Claimant urged the court to discountenance the Defendants’ Reply on Points of law for being anything but a Reply on Points of law. The Claimant submitted that all the Defendants did was to introduce new issue, rehash, reargue and seek to improve on the arguments proffered in their previous Written Address. It is the further submission of Claimant that this is not the purport or function of a reply and that it is not meant to give the Defendants another bite at the cherry. I agree. I have checked the whole processes in the instant case particularly the Claimant’s Final Address and cannot find any indication of reinstatement to elicit or prompt the response from the Defendants’ Reply on Points of Law. So this is a completely new issue which would have required a considered reaction from the Claimant in the interest of fair hearing. A reply on point of law is not supposed to be a repair kit to correct an error or lacuna in the initial argument or to extend the scope of argument and submission earlier made. The purpose and purport of a reply is to address fresh points raised in a respondent’s brief of argument, and not to introduce fresh points. See the Supreme Court cases of Ogolo v. Fubura (2003) 11 NWLR (Pt. 831) 238, per Niki Tobi, J.S.C. (of blessed memory) and BasincoMotora Limited v. Woermann-Line & Anor (2009) 6 S.C.N.J. 249andOsuji v. Ekeocha (2009) 7 S.C.N.J.264 to mention but a few. Under the circumstance, I have no alternative but to discountenance the Defendants’ Reply on Points of Law. A resort to Order 45, Rule 5 of the rules of this court by the Defendant cannot save the Reply on Points of Law.

Assuming I am wrong, let me look at the import of the Defendants’ Reply for whatever it is worth. The gist of the Defendants submission is that the reliefs of arrears of salary, allowances and fringe for work not done can only be granted on reinstatement. And since the Claimant did not predicate his case on reinstatement, the reliefs must fail as the court cannot give what is not claimed, calling in support the cases of Visitor IMSU &Ors v. Okonkwo &Ors (2014) LPELR – 22458 (CA), AG Federation v. A. I. C. Limited (2000) 10 NWLR (Pt. 675) 293 at 305 andEdilcon (Nig) Limited. v. UBA Plc (2017) LPELR-42342 (SC) pp31-32 para B-F.I must say this is the correct position of the law as regards reinstatement and the general attitude of the courts pertaining to the grant of reliefs but inapplicable to the facts of the instant case. The Claimant here is not asking for reinstatement or any relief incidental thereto. The Claimant’s reliefs are as a result of a fixed-term employment cut short by the Defendants and the Claimant should be allowed to swim or sink on that basis. After all, the law is trite that the case of a Claimant is confined to the reliefs claimed. See the case of Gabriel Ativie v. Kabelmetal (Nig.) Ltd (2008) LPELR-591(SC); (2008) 10 NWLR (Pt. 1095) 399; (2008) 5-6 SC (Pt. 11) 47, where the Supreme Court held:

 

“A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same.”

It goes without saying therefore that, just as the court cannot grant a relief not asked for, neither the court nor the Defendant can force or impose a cause of action or relief on a Claimant.From whatever angle one looks at it, be the law regarding reply on point of law or the reliefs sought, the Defendants’ Reply on Points of Law is inapplicable to the instant case and is therefore totally irrelevant in the determination of the instant case. I so hold.

Before I consider the merit of the case, it is imperative to state the undisputed facts of in this case in a nutshell. The Claimant was appointed a member of Akwa Ibom State Civil Service Commission by a letter of 23rd October, 2013. The Defendants were paying the Claimant his salaries and allowances until August, 2015 when they stopped. Under this factual situation, the Defendants without notice on 14th September, 2016 appointed a new Chairman and members of Commission to replace the Claimant and other members of the Commission when the Claimant’s tenure was still subsisting. The implication of this undisputed fact is to narrow down the areas of contentions or frictions between the parties as reflected in the two (2) issues for determination submitted by the Claimant:

Issue No. 1:   Whether the appointment of new members of the Akwa Ibom State Civil Service Commission to replace the Claimant without following due process was lawful while the tenure of the Claimant was subsisting?

This issue deals with the constitutionality or otherwise of the Defendant appointing new members to replace the Claimant as a member of the State Civil Service Commission before the expiration of his tenure. Both sides have relied on the provisions of the 1999 Constitution in support of their respective positions. The task before me now is to take a critical look at these provisions with a view of coming to a decision one way or the other.

Since the burden is on the Claimant to prove his claim, I will take his position first. The position of the Claimant was that his replacement was most unlawful, illegal and unconstitutional. In coming to that conclusion, the Claimant relied on section 197 of the 1999 Constitution(as amended) which established the States Civil Service Commission among other State Executive bodies andsection 199 (1) (c) which conferred a tenure of five (5) years to members of State Civil Service Commission. The Claimant also relied on section 201 of the 1999 Constitution (as amended)to argue that before a governor can remove anymember of the Akwa Ibom State Civil Service Commission, he must act on an address supported by two-thirds majority of the House of Assembly and for reasons of inability to discharge the functions of the officewhether for infirmity of mind or body or any other cause or for misconduct.According to the Claimant, since this procedure was not followedthe purported removal and replacement of the Claimant was illegal, unlawful, null and void.

On their part, the position of the Defendants is that the appointment of the Claimant as a member of the State Civil Service Commission is also governed by sections 14 (4), 197 (3) and section 11 (1) of part 1 of the Fifth Schedule of the 1999 Constitution (as amended). Sections 14 (4) and 197 (3) deals with the need to, in the appointment of statutory agencies, take into cognisance the unity and diversity of the state while section 11 (1) is on the mandatory requirement by public officers to declare assets within three months of their appointment. Following the failure to declare his assets as required, it is the argument of Defendant that the Governor is right to nominate another person to replace the Claimant as a member of the State Civil Service Commission. This is by virtue of the Oath of Office in the 7th Schedule of the 1999 Constitution as amended.

Is the position of the Defendants tenable given the facts of this case? I think not. I have read the provisions of the Constitution relating to the States Civil Service Commissionand cannot find anywhere these two (2) conditions are provided for removing a member of the Commission as in the instant case. At best sections 14 (4) and 197 (3) are matters for consideration before the appointment or constitution of any such commissions but once the appointment is made the procedure under section 201 must be complied with. In any case, the procedure for the appointment of the Claimant as a member of the Commission is not contention here.

As for declaration of assets, the Defendant is attributing to section 11 (1) (a) and (b) of part 1 to the fifth schedule what it did not say. All the section is saying is that every public officer shall declare his assets within three (3) months after taking office. It did not say failure to comply should be the basis of removal of a public officer from office. In fact, if the Defendants have cared to read further, section 12 of the same schedule, the proper action to be taken on an allegation of the breach or failure to comply with section 11 is to merely report to the Code of Conduct Bureau.

It therefore my finding and holding that it is unconstitutional for the Defendants to remove the Claimant as a member of the State Civil Service Commission under the pretext of sections 14 (4), 197 (3) and section 11 (1) (a) and (b) of part 1 to the fifth schedule of the 1999 Constitution. I so hold.

On the other hand, section 201 (1) of the 1999 Constitution stipulates the following conditions before a member can be removed before the expiration of his tenure:

  1. Theremustbearesolutionbytwo-thirdsmajorityoftheHouseofAssemblyoftheStatedirectingtheGovernorto remove the member;
  2. Thereasonfortheremovalmustbeongroundsofinabilitytodischargethefunctionsoftheoffice(whetherarising from infirmity of mind or body or any other cause) or for misconduct.
  3. The Governor then acts on the resolution to removes such member.

A casual look at the facts of this case clearly shows these conditions were not followed when the Claimant was removed as a member of the State Civil Service Commission before the expiration of his tenure. I have no hesitation in holding that the action of the Defendants unconstitutional, null and void. I am fortified in this regard by the several judicial authorities to the effect that where a contract of service is for a fixed term, the employee cannot be removed during the period of the term contracted, except for misconduct or where the employee dies. The law is that a person appointed to a post for a term by statute has a right to serve out the statutory term of his appointment. To determine the appointment, the employer has a duty to comply with the conditions precedent laid down in the conditions of appointment failing which such termination will be held ineffectual and void. See College of Education, Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1199) 423, Achu v. C.S.C., Cross River State (2009) 3 NWLR (Pt. 1129) 475 CAandShena Security Company Limited v. Afropak (Nigeria) Limited (2008) 5 SCNJ 86-87 to mention but a few.

 

Issue No. 2:   Whether the Claimant is entitled to his salary, allowances and leave grant for the period of his statutory appointment?

The law is that he who asserts must prove and in monetary claims rooted in employment relations as the instant case, he is required to proof not only his entitlement to the claims but the quantum of the sums claimed. See Mohammed Dungusors v. ENL Consortium Ltd (2015) 60 NLLR (Pt. 208) 39, where it washeld that it is the Claimant who claims that must prove; and in labour relations, an employee can only claim if he/she shows an entitlement. An entitlement is shown by reference to the law that gives it, the collective agreement from which the entitlement was agreed upon or the conditions of service covering the relationship of the employee and his/her employer. In this case, I hasten to say that the Claimant has scaled these two conditions or hurdles. Not only was he able to place before the court his employment letter (Exhibit CW 1) but was able to connect same with the constitutional provisions in terms a fixed tenure and the Public and Political Office Holders (Remuneration) Law, 2000, cap. 101, Laws of Akwa Ibom State and Public and Political Office Holders (Remuneration) (Amendment) Law, 2007 in terms of the both requirements as to quantum and entitlement.

But can this stand given the formidable and plausible submission of the Defendant that the Claimant is not entitled to remuneration for work not done? I think so. This is because the powerful submissions of the Defendants and the Court of Appeal case of Intels (Nigeria) Limited. &Ors v. Bassey, (2011) LPELR – 4326 (CA) (pg 13 para D)cited, though good law, are not applicable to a statutorily fixed term contract as in the instant case.

The correct position of the law is that where the contract of an employment is determined before the expiration of the term agreed, the employer shall be made to pay the employee the full salary he would have earned for the period of his fixed contracted term. See the casesSwiss Nigeria Wood Industries Ltd v. Bogo (1970) NCLR 423, College of Education, Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1199) 423.  See also the Supreme Court case ofShena Security CompanyLimited v. Afropak (Nigeria) Limited (2008) 5 SCNJ 86-87, whereI. T. Muhammad, JSCput the position beyond any doubt:

 

“The 2nd situation is where the contract of service is for a fixed term. This is where the term of service is pre-determined at the commencement of a contract. Notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employer dies. See Igbe v. Governor of Bendel State (1983) 2 SC 14. Where the contract of an employee is determined before the expiration of the term agreed, the employer shall be made to pay the full salary the employee would have earned for the unexpired period of his fixed contractual term. See Swiss Nigeria Wood Industries Ltd v. Bogo (1970) NCLR 423.”

 

It is in view of the foregoing that I find and hold that the Claimant is entitled to all the reliefs sought. For the avoidance of doubt it is hereby declared as follows:

(a)       That the tenure of office of the Claimant as member of the Akwa Ibom State Civil Service Commission is as contained in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and can only be terminated in accordance with the provision of the Constitution.

(b)       That the appointment of new members into the Akwa Ibom State Civil Service Commission to replace the Claimant as a member thereof before the expiration of the tenure of the Claimant and the refusal of the Defendants to pay the salary, fringe benefit and allowances of the Claimant is contrary to the provisions of the Public Office Holders (Remuneration) Law cap. 101 Laws of Akwa Ibom State, 2000 and the Public Office Holders (Remuneration) (Amendment) Law, 2007 which came into force on 1st February, 2007 and the Constitution of the Federal Republic of Nigeria 1999 (as amended).

(c)       That the Claimant is entitled to the arrears of salary, allowances and fringe benefits due to him as member of the Akwa Ibom State Civil Service Commission from the month of August, 2015 when the Defendants stopped paying the salary and allowances to the September, 2016 when the Defendants appointed new members into the Commission.

(d)       That the Claimant is entitled to be paid all the salary, allowances and fringe benefits and the severance package due to him as member of the Akwa Ibom State Civil Service Commission up to and including October, 2018 when the tenure of his office would have expired by law.

It is also hereby ordered as follows:

(a)       The Defendants shall pay the Claimant N8,639,061.20 (Eight Million, Six Hundred and Thirty Nine Thousand, Sixty One Naira, twenty kobo) being the arrears of salary, allowances and fringe benefits due and payable to the Claimant by the Defendants from August 2015 till September, 2016 when the Defendants stopped paying the claimant’s salary, allowances and fringe benefits.

(b)       The Defendants shall pay the Claimant N14,809,819.20 (Fourteen Million, Eight Hundred and Nine Thousand, Eight Hundred and Eight Hundred and Nineteen Naira, Twenty Kobo) being the salary, allowances and fringe benefits due to the Claimant from October, 2016 till October, 2018 when the tenure of the Claimant would have expired.

(c)       The Defendants shall pay the Claimant N3,750,330.00 (Three Million, Seven Hundred and Fifty Thousand, Three Hundred and Thirty Naira) being the severance package due to the Claimant on the completion of his tenure as member of Akwa Ibom State Civil Service Commission on October, 2018.

(d)       The Defendants shall pay the Claimant N500,044.00 (Five Hundred and Forty Four Naira) being annual leave grant due and payable to the Claimant for 2015, 2016, 2017 and 2018 at N125,011 per annum.

All payments are to be made within 30 days from the date of this judgement.

I make no order as to cost.

Judgment entered accordingly.

 

                                                ………………………………………

HON. JUSTICE M. A. NAMTARI

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