IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 5TH OCTOBER 2018 SUIT NO.NICN/OW/47/2017
BETWEEN:
1. EJIKE CHARLES NWOKORO
2. CHIEF S.I. MBACHU
3. SIR TIM AZUBUIKE CLAIMANTS
4. CHIEF S.O. UKADIKE
AND
1. GOVERNOR OF IMO STATE
2. THE SECRETARY TO THE GOVERNMENT
OF IMO STATE
3. CHIEF JUDE EJIOGU
4. DR. MRS. IHENACHO DEFENDANTS
5. SIR CHURCHIL UTAZI
6. HON. EMEKA OKONKWO
7. THE ACCOUNTANT-GENERAL OF
IMO STATE
APPEARANCES:
1. E.N. ICHIE FOR THE CLAIMANTS.
2. N.M. OBIOHA, PRINCIPAL STATE COUNSEL, IMO STATE MINISTRY OF JUSTICE, FOR THE DEFENDANTS.
JUDGMENT
NOTE: This case was entirely heard and concluded at the Owerri Judicial Division of the Court but the judgment delivered at the Enugu Judicial Division of the Court pursuant to Order 62, Rule 12(1) of the NICN Rules 2017.
INTRODUCTION
This suit was commenced by writ of summons at the Imo State High Court on 1/3/2013 and transferred to this Court on 25/07/17 by an order under the hand of Hon. Justice F.I. Duroha-Igwe of the Imo State High Court. Fresh originating processes were filed in this Court on 12/09/17. The Statement of Facts [wrongly tagged “Statement of Claim”] has the following reliefs it its paragraph 21:
(i) A declaration that the respective appointive tenures of each of the claimants as members of the Imo State Local Government Services Commission are still valid and subsisting.
(ii) A declaration that the 3rd – 6th defendants are not under the Imo State Local Government Services Commission Law, or any Law applicable in Imo State, members of the Imo State Local Government Services Commission.
(iii) A declaration that the purported appointment of the 3rd – 6th defendants by the 1st Defendant as members of the Imo State Local Government Services Commission is unconstitutional, null and void and of no effect whatsoever.
(iv) A declaration that any salaries, allowances, and emoluments howsoever described paid to any of the 3rd – 6th Defendants by the 1st Defendant is unlawful and subject to recovery.
(v) An Order of Court on the 3rd – 6th Defendants to vacate the offices of the Chairman and members of the Local Government Commission, and desist from performing any statutory functions of the Imo State Local Government Services Commission.
(vi) An injunction restraining the 7th Defendant from releasing any funds for the payment of salaries, allowances or emoluments howsoever described and for whatsoever purpose to each and any of the 3rd – 6th Defendants or members of the Imo State Local Government Services Commission.
(vii) An Order of Court on the 3rd – 6th Defendants to refund all payments by way of salaries, allowances or other emoluments made to each of them as members of the 7th Defendant.
(viii) An order of injunction restraining the 1st and 2nd Defendants from, in any manner whatsoever holding out, treating, or relating to the 3rd – 6th Defendants as members of the Imo State Local Government Services Commission.
(ix) An order of injunction restraining the 1st – 6th Defendants, in any manner whatsoever, and through any security personnel, or other persons howsoever described, directed, or empowered, from preventing the claimants from going to their respective offices at the Local Government Services Commission, Owerri to perform their statutory functions for the period of their un-expired tenure.
IN THE ALTERNATIVE, an order of Court on the 1st Defendant to direct the 7th Defendant to pay each of the claimants in full their due salaries, allowances and other emoluments for the outstanding period of the unexpired tenure with effect from February, 2012 as follows:
1st Claimant: N24,072,272.74
2nd Claimant: N26,408,842.84
3rd Claimant: N21,547,228.61
4th Claimant: N21,575,228.61
=
TOTAL : N93,575,572.40
As contained in the Statement of Facts, the claimants’ case is that the 1st claimant was the Chairman of the Imo State Local Government Service Commission and that the 2nd – 4th claimants were members, and that they were all duly appointed by the 1st defendant. They claimed that their tenures as such were for five years certain and that they could only be removed in accordance with the provisions of the Imo State Local Government Service Commission Law and that, these provisions were not observed in their removal hence, the appointment of the 3rd-6th defendants in their stead was illegal and ultra vires the 1st and 2nd defendants. Subsequent to the Statement of Facts, the defendants filed their joint Statement of Defence on 5th October 2017. In it, the defence of the defendants was that the suit was speculative, statute barred and not duly constituted and that; the claimants were duly terminated and therefore, had no unexpired tenures.
The case came up for hearing on 5th February 2018. The case was opened with CW1 – Sir Timothy Azubuike, who testified for the claimants. CW1 adopted his written deposition deposed to on 12th September 2017. CW1 tendered some exhibits, which were accordingly admitted and marked. CW1 finished his testimony on the same date and was cross-examined by the counsel to the defendants and the case was thereafter adjourned to 28th February 2018 for the defence. On this date, the matter could not go on because the witness for the defence was not in Court. It was therefore further adjourned to 19th and 23rd April 2018 for defence and cross-examination. The case came up on 19th April 2018 as adjourned and the defence opened their case with DW1 – Chuks Louis Okoro. DW1 adopted his written deposition sworn to on 5th October 2017 as his evidence-in-chief. He did not tender any exhibit. DW1 was also cross-examined on this date. Thereafter, the matter was adjourned to 11th June 2018 for adoption of final written addresses.
On the 11th June 2018, the matter came up but could not go on as adjourned, as the defendants did not pay default fees for their Statement of Defence filed out of time. Therefore, on application, the said Statement of Defence was deemed properly filed and served subject to payment of the default fee; and the matter was further adjourned to 9th July 2018 for adoption of the final written addresses. The matter came up as adjourned on 9th July 2018. As the Court found that the defendants had paid the default fee of N2,800 as endorsed on p. 310 of file and evidenced by the receipt attached to the back of p. 316 of file, the adoption of the final written addresses was allowed to go on as scheduled. The defendants’ counsel: N.M. OBIOHA, SENIOR STATE COUNSEL, IMO STATE adopted the defendants’ final written address dated and filed 7th June 2018, and urged the Court to dismiss the suit. The counsel to the claimants: CHIEF M.I. AHAMBA, SAN adopted the final written address of the claimants dated 18th June 2018 but filed 28th June 2018. The learned counsel thereafter urged the Court to grant the reliefs claimed after effecting some correction on the final written address. No reply on points of law was filed. Thereafter, the case was adjourned to 24th September 2018 for judgment but could not be delivered at the Owerri Judicial Division on this date as a result of the exigencies connected with my transfer out of the Owerri Judicial Division before this date. It was therefore further adjourned off record to the 28th September 2018 for delivery in the Enugu Judicial Division pursuant to Order 62, Rule 12(1) of the NICN Rules 2017. However, on this date too, it could not be delivered due to the strike action embarked upon by labour, which prevented the Court from sitting. As a result, it was finally adjourned to 5th October 2018 for delivery at the Enugu Division.
The above is the summary of the events and processes penultimate to and inclusive of the adoption of final written addresses. The next thing is, the summaries of the final written addresses of counsel to the parties. I start with that of the defendants.
FINAL WRITTEN ADDRESSES OF COUNSEL
A. Address of the Defendants’ Counsel
N.M. OBIOHA, SENIOR STATE COUNSEL, IMO STTAE franked the final written address of the defendants. The learned counsel formulated three issues as follows:
1. Whether this suit is competent. [sic]
2. Whether this suit is maintainable in view of the provisions of section 2A public officers protection edict Laws of Imo State. [sic]
3. Whether in the preponderance of evidence, the claimants are entitled to judgment in this suit. [sic]
ISSUE 1:
Whether this Suit is Competent?
Under issue 1, the learned N.M. OBIOHA stated that this suit, which was originally filed at the Imo State High Court in 2013, was transferred to this Court on 25th July 2017 pursuant to section 24 of the National Industrial Court Act [NICA]. He submitted that, section 24 of the NICA was not applicable to the Imo State High Court, being a State High Court under section 254 of the Constitution of the Federal Republic of Nigeria 1999 [1999 Constitution]. Counsel submitted further that, the powers of the Imo State High Court were as conferred by the Imo State High Court Law and that, the NICA, being a federal legislation, only regulated the NICN and thus, the Imo State High Court could not be subjected to its dictates. The learned counsel submitted further that, the transfer from the Imo State High to this Court on 26th July 2017 was therefore ultra vires the High Court of Imo State. Citing Awoleye v. Board of Custom & Excise (1990) LPELR-652 (SC); Okulate V. Awosanya (2000) LPELR-2529 (SC); Keystone Bank Ltd v. Nnamani (2015) LPELR-40761 (CA); Amobi v. Anazoba (2016) LPELR-41544, counsel submitted that the Court was not seised of jurisdiction. Counsel therefore urged the Court to dismiss the suit for being incompetent and moved on to his issue 2.
ISSUE 2:
Whether this Suit is Maintainable in View of the Provisions of Section 2(a) of the Public Officers Protection Law of Imo State?
Arguing under this issue, counsel submitted that, the defendants are public officers by virtue of Ibrahim v. JSC (1998) 14 NWLR (Pt. 584) 38 and that, once a defendant is found to have acted within its statutory mandate, any suit against the defendant must be commenced within 3 months next the cause of action to escape the snare of the Public Officers Protection Law [POPL]. Counsel argued that the claimants herein are challenging the defendants’ exercise of their statutory powers and that, it would not matter how the cause of action was framed. On this, counsel cited NPA v. Lotus Plastics Ltd (2005) LPELR-2028 (SC); and WAEC v. Akinkunmi (2008) LPELR-3468. Counsel submitted that where a suit challenging the exercise of statutory power is not brought within 3 months, the Court lacked jurisdiction to inquire into the mode or circumstances of the exercise of the powers. Counsel argued that the cause of action arose in this suit upon the inauguration of the 3rd-6th defendants; and that, failure to file this suit three months next thereof was fatal. On this, the learned counsel relied on AG (Adamawa) v. AG (Federal) (2014) LPELR-23221 (SC); and Minister of FCT v. Mononia Hotels Ltd (2010) LPELR-4257 (CA). Counsel finally urged the Court to dismiss this suit on account of this and moved to issue 3.
ISSUE 3:
Whether in the Preponderance of Evidence, the Claimants are entitled to Judgment in this Suit?
Counsel submitted that the main complaint of the claimants before this Court was that their appointment was terminated prematurely but yet, there was nothing before the Court to show the termination. Counsel argued that this point was conceded by the CW1 under cross-examination. Counsel submitted that the testimony of CW1 that the claimants were chased away by armed policemen from their offices was not proved before this Court and as such, amounted to mere conjecture and that, the Court lacked jurisdiction to entertain conjecture. On this, the Court was referred to Ajayi v. State (2014) LPELR-23027 (SC); Iwayemi v. Akimbo (2016) LPELR-40136 (CA); Unity Bank Plc v. Raybam Engr. Ltd (2017) LPELR-41622. Counsel argued that the defendants have before the Court the evidence that the claimants absconded from their duty posts, and hence, they could not be allowed to benefit from their wrongs. Counsel cited PDP v. Eze Onwuka (2017) LPELR-42563 (SC) and Teriba v. Adeyemo (2010) LPELR-3143 (SC).
Counsel submitted further that the claim by the claimants that they were chased away from their offices raised some serious questions. Counsel argued that it raised the questions of whether the claimants were all at the same time in their various offices, whether after the action of the police, the matter was reported at the police station and, whether the claimants returned to their offices after the said forcible eviction and there was a repeat of the forcible eviction. Counsel posed whether there were no eyewitnesses to this event that ought to have been called to testify. Counsel submitted that all these gaps were fatal flaws that made the story of the claimants unbelievable. Counsel submitted that the resolution of the House of Assembly [Exhibit B3] was made on 27th July 2011 and yet, the claimants belatedly wrote their complaint [Exhibit D-D1] on 23rd January 2012: a time lapse of 6 months. Counsel argued that the implication of this is that, the resolution was not a threat to the appointments of the claimants; otherwise, they would not have waited for 6 months to write the complaint.
Counsel also argued that there was contradiction in the evidence of the claimants with regard to the date the 3rd-6th defendants were inaugurated. Counsel submitted that whereas, CW1 testified that the inauguration of the 3rd-6th defendants took place on 12th February 2012 while the letter dated 7th February 2012 [Exhibit C-C1] written to the 1st defendant stated the inauguration date to be 4th February 2012. Counsel argued that this contradiction was material and that, the Court could not pick which to believe and that this greatly discredited the testimony of CW1. Counsel submitted that the claimants made heavy whether of the fact that their appointments were terminated by the 1st defendant yet did not lead any evidence in this respect at the trial while the defendants did not allude to any termination in their Statement of Defence nor lead any evidence on this at the trial. Counsel submitted that arising from these, the claimants have not disclosed any reasonable cause of action. Counsel argued that the three different letters of appointment tendered showed that the claimants were not appointed the same day and that, as a result, they did not have common cause of action since similarity of interests would not give rise to common cause of action. On this, counsel cited Bossa v. Julius Berger Plc (2005) ALL FWLR (292) 1503.
Counsel submitted further that the fact that the claimants did not place their conditions of service before the Court was fatal to their action and that, they have thus failed to place enough material before the Court to entitle them to the judgment of the Court. Counsel submitted that if the evidence of both parties were placed on the imaginary scale, that of the defendants was preponderant. Counsel finally urged the Court to dismiss this suit as it lacked merit. Thus ended the final written address of the defendants. I move to the final written address of the claimants.
B. Written Address of the Claimants’ Counsel
E.N. ICHIE franked the final written address of the claimants. The learned counsel submitted that in view of the fact that the respective tenures of the claimants have elapsed, the claimants would, in respect of relief 9(ix), seek only the alternative relief. Thereafter, the learned counsel argued that the fact that the claimants were obstructed from carrying out their works before the expiration of their tenures, which fact was pleaded, was not in contention. Counsel replied to issues 1 of the defendants’ address and submitted that they were extraneous to the issues arising in the suit, as they could not be distilled from the pleadings. Counsel cited Messrs. Lewis and Peat (Nr 1) Akhimien (1976) 7 SC 157 AT 162-163 to the effect that, issues could only be joined when there is proper traverse. Counsel also cited Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598 at 620 to the effect that, a claimant is not obliged to establish by fact an issue that is not specifically denied or denied by implication.
Counsel submitted that the argument of the counsel to the defendants that the High Court of Imo State lacked jurisdiction to transfer this suit to this Court is misconceived because the counsel did not take cognizance of the inherent power of superior courts under section 6(6)(a) of the 1999 Constitution. Citing Adigun v. Governor of Oyo State (1987) 2 NWLR (Pt. 56) 197 at 235 paras. F-G, counsel submitted that, the High Court of Imo State is imbued with the inherent power to take any step that would prevent injustice, once such step is not specifically prohibited. Counsel argued that since there is no statute that specifically prohibited the High Court from transferring this matter to the NICN, the ultra vires rule was inapplicable to the situation at hand. Counsel conceded the fact that there was no specific provision conferring on the High Court to transfer cases to the NICN but contended that, since the NICN was established later than the High Court, there could not have been such a provision in existence. Counsel argued that section 24(3) of the NICA however gave the NICN power to receive and hear cases transferred to it from the Federal High Court and State High Courts similar power too, instead of striking them out. Counsel submitted that therefore, the Imo State High Court acted within its jurisdiction in the interest of justice by transferring this suit to the NICN.
Counsel argued further that if however this Court is minded to agree with the objection raised by the defendants, the claimants would contend that the objection would still not avail the defendants because, this suit was actually filed afresh in this Court on 12th September 2017, and was thus duly commenced on that date. On this basis, counsel urged the Court to resolve issue 1 against the defendants and in favour of the claimants.
Counsel thereafter moved to issue 2 of the defendants. Counsel submitted that the argument that once the act in issue is one within the statutory mandate of the defendants, it would be covered by section 2(a) of the POPL that, this argument was misconceived, in view of the fact that the defendants had a duty to prove that the acts complained against were actually within the statutory mandate of the defendants. Counsel submitted that the case of the claimant was that the 1st defendant acted ultra vires his statutory mandate by physically preventing the claimants from performing their statutory duties by forcibly ejecting them from their offices. Counsel cited Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 457 at 591 B-C to the effect that, the Public Officers Protection Act would not protect a public officer that acted outside the scope of his authority. Counsel also cited Nwakwere v. Adewunmi (1967) NMLR 45; Ekeogu v. Ariri (1991) 3 NWLR (Pt. 179) 258 at 274, paras. C-D; and Ogun State Government v. Dalami (Nig) Ltd (2007) 9 NWLR (Pt. 1036) 66 at 100 on this point. Citing AG Bendel State v. Aideyan (1989) 4 NWLR (Pt. 646) at 670, para. B, counsel argued that, any government act that is not covered under any enabling law is a nullity. Counsel submitted that, the act of the 1st defendant herein, which was not covered by section 2(a) of the POPL, was a nullity.
Counsel submitted that, in the absence of letter of termination and absence of pleadings or evidence as to the date of the termination, it followed that no issue was raised with regard to the date of termination. Counsel also contended that only the 1st, 2nd and 7th defendants are public officers and that, the 3rd-6th defendants, who are not employees of the Local Government Service Commission, are not and that, they were merely served because their relief 21(7) could affect them. Counsel argued that the defendants did not plead anything against nor argued against this fact. Counsel argued that this suit was commenced pursuant to the NICN rules and that the defendants had not shown that any of these rules was breached.
Subsequently, the learned counsel submitted that, having done with the preliminary objections raised by the defendants, two fresh issues would be submitted for the determination of this case. The learned counsel couched the two issues thus:
(a) Whether the removal of the Claimants from office as Chairman and members of Imo State Local Government Service Commission without due process of the law is proper and legal. [sic]
(b) Where the answer to (a) is in the negative, whether the Claimants are not entitled to their claims. [sic]
Under issue 1, the learned counsel to the claimants submitted that section 64(4) of the Local Government Administration Law, No. 15 of 2000 [LGAL] provides the procedure for the removal of the claimants in office and that, the claimants could only be removed from office on accounts of ill-health and misconduct, which grounds must be the basis of the debate and approval by the House of Assembly. Counsel argued that, in paragraphs 8 and 9 of the claimants’ Statement of Facts, it was pleaded that the claimants were illegally removed from office and that, the defendants in their paragraphs 10 and 11 adopted a general traverse and also put the claimants to the strictest proof thereof instead of specifically denying this fact. Counsel submitted that, this did not amount to a denial. Counsel cited Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1, 11, paras. A-B. Counsel cited Akintola v. Solano [supra] 620, para. F to the effect that, any allegation in the Statement of Facts not specifically denied is deemed admitted. Counsel also cited Adimora v. Ajufo [supra] to the same effect. Counsel submitted that the defendants, having not specifically denied the fact of the illegal termination of the claimants, the fact is deemed admitted. Counsel argued further that, the action of the 1st defendant ought to have been after a proper written resolution by the House and in accordance with section 36(1) of the 1999 Constitution. Thus, the learned counsel to the claimants concluded arguments on his issue 1 and moved to his issue 2.
Under issue 2 distilled by the learned counsel to the claimants: E.N. ICHIE, it was submitted that, flowing from the submissions in issue 1, the claimants are entitled to be reinstated but that, since their tenures had lapsed in the course of this action, they ought to be paid their arrears of salaries. Counsel argued that this must be so since the claimants were illegally obstructed from performing their duties, they must be deemed to have run their tenures and therefore entitled to their full salaries. Counsel cited Olufeagba v. Abdul-Raheem supra [without being earlier cited] and Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162 at 203-204, paras. H-A to argue that, the claimants would be entitled to be paid from the date of unlawful interference with their appointments.
Counsel subsequently argued that the claimants never pleaded the date of their inauguration but pleaded that of 3rd-6th defendants contrary to the contention of the defendants’ counsel. Counsel submitted that, as such, there was no contradiction in the evidence of the claimants. Counsel also submitted that the claim of the claimants was that they were forced out of office and not that, their appointments were terminated and that, no evidence to the contrary was led. Counsel argued further that law and the letters of appointment regulated the conditions of service of the claimants. Counsel finally urged the Court to grant the reliefs claimed in the interest of justice. Thus, the final written address of the claimants was brought to an end. As there was no reply on points of law filed, I shall proceed to the next duty, which is to apply the law to the evidence of the case and come up with an appropriate decision.
Let me state beforehand that I have carefully read through all the relevant processes and digested them. I have equally carefully summarised the final written addresses of the parties, as could be seen above. I have also carefully listened to the testimonies and cross-examinations in Court and carefully read the depositions on oath. In the course of this judgment, I shall therefore make references to the testimonies and cross-examinations as may be necessary in buttressing my reasoning.
DECISIONS OF THE COURT
In giving my decisions, I shall start with the jurisdictional objections raised. This is because issue of jurisdiction is pivotal to adjudication, and therefore must be trashed out before a court goes on to give its decision on any other issue because, without jurisdiction, it is trite that a court lacks the power to give a decision. In a nutshell, a court labours in vain without jurisdiction. So, my decisions shall be divided into parts: A & B. Part A shall deal with the jurisdictional points raised and canvassed by the defendants, while Part B shall deal with the merit of the case, firstly, in the event that the jurisdictional points are dismissed, and secondly, even if the jurisdictional points are upheld, to save judicial time, in the event that the Court of Appeal overrules my decisions on the jurisdictional points, to obviate the need for retrial, which would happen if I fail now to give my decision on the merit of the case.
A. Decisions on the Jurisdictional Points
The first point canvassed under this heading is that of lack of competence on the part of the Imo State High Court to order transfer of this suit to this Court. First, I shall deal with the argument of the claimants’ counsel that this issue is extraneous, as it could not be distilled from the pleadings. I agree with the claimants’ counsel that the issue is extraneous but not because the issue was not distilled from the pleadings, but for other reasons. First is that, in effect, the argument against the transfer of the suit from the Imo State High Court to this Court is, in essence, challenging the exercise of power by the High Court of Imo State and not the exercise of power by the NICN. The arguments of counsel to the defendants dovetailed into lack of jurisdiction on the part of the Imo State High Court to transfer this suit to this Court. Thus, I found that objection is actually raised against what the Imo State High Court did and not against anything done by the NICN. I observed that the defendants’ counsel concentrated arguments on the action of the Imo State High Court in transferring this suit to the NICN and did not actually challenge the acceptance of the transfer by the NICN. So, I am baffled at the purpose of the objection in this Court when nothing is alleged against this Court. It looks like an afterthought.
Thus, the objection ought to have been raised at the Imo State High Court when the case was to be transferred and not at this Court; and if it was raised thereat and overruled, that made a case for appeal and not a reason to raise the issue again in this Court. This Court, not being the Imo State High Court, has no jurisdiction to decide what ought to have been decided by the Imo State High Court, and not being the appellate court to the Imo State High Court, it lacked the jurisdiction to overrule the decision of the Imo State High Court transferring the suit to this Court. Both courts are courts of coordinate jurisdictions. Interestingly too, I have not found any argument canvassed against the acceptance of the transferred suit by this. If this were done, different considerations could have come into play. Thus, it means the defendants are not in any way challenging the acceptance of the transfer by the NICN. And it is not my duty to find a case for the defendants. So, in essence, the jurisdiction of the NICN is not being challenged on this count at all. So, the objection on the lack of jurisdiction on the part of the High Court of Imo State to transfer this case to this Court is actually now extraneous as argued by counsel to the claimants. This is clearly not the venue where it ought to be raised. As stated earlier, if objection had been raised against the acceptance of the transfer by this Court or on lack of power on the part of this Court to accept the transfer, different considerations might have emerged. The objection herein is therefore misplaced, and being misplaced, cannot therefore be entertained.
Besides, I found germane the argument of counsel to the claimants that the objection against the transfer of this suit to this Court would not avail the defendants in all events because this suit was actually filed afresh in this Court and therefore, satisfied all the requirements of commencing a suit in this Court and should be so treated. I have checked and observed that the originating processes were filed all-over afresh in this Court. I observed that the counsel to the defendants did not present any argument against this, as no reply on points of law was filed. The implication is that, the point or argument is conceded – see Donbraye & Anor. v. Preyor & Ors. (2014) LPELR-22286 (CA) 70, paras. D-F. But that does not relief me of my responsibility to investigate the rightness of the argument canvassed notwithstanding its not being challenged by the adversary. Therefore, I observed that the only limitation law raised against the suit is that it was caught by section 2(a) of the POPL. So, the objection on transfer of the suit and the defence that the suit was filed afresh in this Court dovetailed into that of objection on section 2(a) of the POPL. Therefore, this point shall be considered along the jurisdictional objection anchored on section 2(a) of the POPL. The reason for this view of mine shall come out anon in due course.
For now, I move to the issue of the suit being statute barred by virtue of section 2(a) of the POPL. I shall come back to the argument that the suit remained unscratched notwithstanding its transfer to this Court because it was filed afresh in this Court and therefore should be taken as filed in this Court in its own right. This is because the issue could only be resolved one way or the other after a decision on whether section 2(a) of the POPL, a limitation law, barred this action. The contention under section 2(a) of the POPL is that the suit was filed out of the prescribed three months and therefore caught in the web of section 2(a) of the POPL, which placed a time limit of three months to commence suits against public officers and institutions for any of their acts and omissions in the course of carrying out their duties. I accept the submissions of counsel to the claimants that the cover provided by section 2(a) of the POPL does not extend to acts and omissions of public officers, which are totally illegal; and that, once issue of complete illegality is raised, the defendant must prove the legality of their acts to come within the protections offered by section 2(a) of the POPL. In agreeing with the counsel to the claimants, I found the following passage, from the decision of the Supreme Court in AG Rivers State v. AG Bayelsa State & Anor (2012) LPELR-9336 (SC) 30-31 [no paragraph given] useful, and I quote:
“The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the Plaintiff in this suit…
The pleadings of the Plaintiff at paragraphs 15, 38, 46 of the Amended Statement of Claim and paragraphs 6(i)-(iii); 7-9 of the Counter-Affidavit, it alleged that the 1st Defendant had perpetrated fraud and perpetrated deception on the Authorities to gain access to funds it is not entitled to under the Constitution. The 1st Defendant cannot avail itself of the defence under the Act if it has stepped outside the colour of its office, or its Statutory or Constitutional duties, if any. This Court must look into this issue and would not with a wave of hand deprive the Plaintiff its legal capacity, to ventilate his grievance…
In the foregoing premises I am of the firm view that the 1st Defendant’s preliminary objection founded on the Public Officers Protection Act cannot avail him. It is frivolous and it is dismissed in its entirety for lacking in merit.”
This is a Supreme Court’s decision and it is later in time than all the authorities cited by counsel to the defendants, and therefore prevails. What could be deduced from the above authority is that, once issue of illegality or acting outside the scope of authority is clearly pleaded by the plaintiff/claimant, the case cannot be determined in limine on the basis of the Public Officers Protection Act or any other similar law like the POPL. It must proceed to trial on the merit. The issue of POPL is raised herein as a preliminary objection, even though, at the final written address stage. Notwithstanding its being raised at the stage of final written address, it is clear that the intendment is to determine the issue in limine, as the argument of counsel to the defendants clearly indicated that, since this issue was raised, the Court should not look into the manner in which the cause of action was framed. This argument is clearly discredited in the Supreme Court’s authority under review. The law, as established by the Supreme Court above, is that, once issue of illegality is pleaded, then, the POPL cannot avail the defendant to estop the court from delving into the merit of the case.
The claimants herein in paragraphs 9-18 of the Statement of Facts pleaded the facts that the Imo State House of Assembly on 27th July 2011, without any authority or probable cause, incited the 1st defendant by a resolution passed, to dissolve the Commission and appoint new members to replace the claimants and that, the claimants protested this by a letter dated 23rd January 2012 and that, there was no response to this letter but the 2nd defendant proceeded on the 3rd February 2012 to inaugurate the 3rd-6th defendants and installed them in the offices of the claimants by forceful eviction with the aid of security agents and that, since then, the claimants had been prevented from accessing their offices. The claimants also stated that since the passage of the resolution of the House of Assembly, no letter was served the claimants indicating their removal from office and that, since the inauguration of the 3rd-6th defendants, they [3rd-6th defendants] had been paid illegally while the claimants had been denied their rightful payments. The averments related above were also repeated in paragraphs 11, 12, 13, 14, 15, 17, 18 & 19 of the Claimants’ Witness’ Deposition, which is already evidence before this Court via CW1. It is therefore clear that pleadings and evidence were copiously available on allegations of illegality against the defendants. Hence, the provisions of section 2(a) of the POPL cannot avail the defendants to inhibit the claimants from ventilating their grievances. In this wise, the objection on the ground of section 2(a) of the POPL is without merit, and is accordingly dismissed.
Since the only limitation law raised against the suit is that of section 2(a) of the POPL, which has been dismissed, it follows that the suit, which was completely re-filed afresh in this Court, enjoys the benefits of suits commenced in their rights in this Court. There being no argument canvassed against the argument that it was properly re-filed in this Court and there being no objection that the suit fell outside the subject-matter jurisdiction of this Court, the suit is properly commenced in this Court in its own right and for this additional reason, the objection on transfer fails, and for the earlier reason offered, and this additional reason especially, the objection on transfer of the suit to this Court is dismissed too as totally lacking in merit. There is no further objection against the suit. I shall now proceed to examine the merit of the case.
B. Decision on the Merit of the Case
In resolving this case on the merit, I will adopt issue 3 formulated by the counsel to the defendants, to wit: “Whether on the preponderance of evidence, the claimants are entitled to judgment in this case?” Save the contentions that the defendants acted intra vires in all they did in this case and that the defendants did not use security forces to evict the claimants, the essential facts alleged by the claimants and on which evidence was led are not denied. A mere general denial of the averments in pleadings without giving specifics and putting the claimants to the strictest proof thereof are no denial in law – Nseobot & Ors v. Anderson (2015) LPELR-25834 (CA) 16-17, paras. C-C. To investigate whether or not the defendants acted intra vires, then, it is necessary to examine the provisions of the LGAL under which the claimants were appointed and under which the 1st defendant must exercise the power to remove them from office alongside the constitutional provisions relevant to the issue and facts of this case. As it is now, the first duty of the Court is the interpretation of the relevant provisions of the two statutes mentioned. Now, section 64(4) of the LGAL provides that:
“The Chairman or any member of the commission shall only be removed from office by the Governor of the state acting on an address supported by simple majority of the State House of Assembly praying that he/she 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 misconduct)”
Let me observe, before construing the provisions of section 64(4) of the LGAL that, the defence did not file reply on points of law and so did not reply on the issue of section 64(4) of the LGAL raised freshly by the claimants in their address. The implication is concession of the arguments canvassed – See Godsgift v. State (2016) LPELR-40540 (SC) 42-43, paras. F-B. Nevertheless, since I have a duty to ascertain the correctness of the arguments canvassed, I must still construe these provisions on my own. Construing the provisions of section 64(4) of the LGAL, it is clear that, it is the Governor who has the power to remove the claimants from office. With the power to remove is the corresponding duty to satisfy the conditions precedent thereto, the first of which is to formally present an address to the House requesting approval to remove and which approval is signified by simple majority vote of the House in support of the address. Since it is the not the House that has the power to remove, it cannot be burdened with the duty of making and presenting an address before itself requesting for the removal of the claimants and at the same time approving the request contained in the address. It is he who has the statutory power of removal made contingent on the approval of the House that must make the request to the House through the address. That this is the intendment is borne out by the facts that the House has no power of removal vested in it and therefore cannot compel the Governor to remove without the Governor’s request for approval while the Governor cannot remove without the approval of the House. By this, the section incorporated check and balance to secure independence of the claimants in discharging the functions of their office without being subjected to the whimsical caprices of the executive or any one governmental arm, and this could only be achieved if a single arm of government does not have overriding power or influence in their removal, which would happen if the House is the initiating and approving authority using the Governor as its mere secretary to carry out its instruction; thus defeating the purpose of the law.
Therefore, it is through the address that the Governor prays for the removal and not the simple majority vote: the simple majority vote only supports the prayer contained in the address, and it is therefore the duty of the Governor, who has the power to remove, to present this address containing the request and the reason for the request. If a contrary interpretation is adopted, it would mean that the Governor, who is conferred with the power to remove, has no input in the process of removal, but is merely a secretary or agent that must issue, by compulsion, the instrument of removal, contrived, initiated and approved by the House alone. Such passive role is not designed for the Governor. Both the Governor and the House have active roles to play in the process of removal. Otherwise, the law would have simply provided that, ‘the House shall have the power of removal by raising a motion supported by simple majority’. This not being so, contrary interpretation cannot be adopted.
Hence, when the Governor wants to exercise his power of removal, he must forward his desire to the House and the reason(s), within section 64(4) of the LGAL, for the desire, which would form the basis of the debate and vote by the House and not the other way round. These the Governor does by formally presenting an address to the House, which address must be supported by simple majority of the House before the Governor could go ahead to validly remove the claimants. After everything is done, the Governor must formally issue an instrument of removal, which states clearly compliance with the stipulated procedure and gives the reason(s) for the removal, which must be one of the reasons outlined by section 64(4) of LGAL. It does not appear that the House can initiate the removal of the claimants. This is why the general power of the House to pass a motion and make a resolution on any issue should be distinguished from a function conferred on the House by a statute and only exercisable pursuant to activation by a condition precedent. The power under section 64(4) of the LGAL is a power specifically conferred on the House by statute and distinct from its general powers. In law, the specific overrides the general – see Ugwu & Ors. v. PDP & Ors. (2013) LPELR-21356 (CA) 60, paras. F-G and Salvador v. INEC & Ors. (2011) LPELR-14932 (CA) 24, para. E. It must not be forgotten that the LGAL has clearly stipulated the procedure for the removal, and the House must act within the confines.
Assuming my reasoning above is wrong, I am still of the view that my decision would remain the same, in view of the failure of the House to comply with section 36 of the 1999 Constitution in arriving at its gratuitous motion urging the Governor to remove the claimants. I am of the firm view that whatever mode is used for the removal of the claimants, it is also certain that section 36 of the 1999 Constitution must be complied with. Section 36 of the 1999 Constitution is of general application to all bodies exercising judicial and quasi-judicial functions, and any government or authority that is assigned by statutes to determine questions arising in the administration of law that may affect the civil rights of people or make decisions that may affect people by virtue of subsection (2) of section 36 of the 1999 Constitution thereof. These include the House of Assembly, an administering authority on section 64(4) of the LGAL and an arm of government– see Adigun & Ors. v. AG of Oyo State & Ors. (1987) LPELR-177 (SC) 46-47, paras. D-F.
Subsection (2)(a) of section 36 specifically provides that the person to be affected by the decision of the administering authority or body exercising quasi-judicial functions must be heard before the decision affecting him is reached. In exercising its functions under section 64(4) of the LGAL, the House becomes a tribunal or an administering authority of sort exercising quasi-judicial functions and bound by section 36 of the 1999 Constitution. Thus, the claimants must be invited to air their own side before a decision affecting them could be made, otherwise, the decision would amount to a nullity. It is my considered view that subsection (2)(a) of section 36 of the 1999 Constitution incorporated the rules of natural justice and makes them applicable to all authorities, departments and persons that are conferred with powers to determine questions arising in the administration of a law or that may affect the civil rights of any person by insisting that the person to be thus affected must be heard before such decision is reached. The House is an administering authority on section 64(4) of the LGAL, with power to make decisions affecting the civil rights of the persons enumerated by section 64(4) of the LGAL. I am fortified in this view by the authority of Otu & Anor. v. Ani & Ors (2013) LPELR-21405 (CA) 113-114, paras. E-C, wherein the Court of Appeal held that:
“The law attaches great importance to the rule of fair hearing even in instances when rights and obligations of a person are to be determined by bodies or institutions which are not courts of law. Decisions reached by such bodies should be guided by the principles of natural justice. On the universality of the application of the principles of natural justice, Kelly, L.C.B., in 1874 in Wood v. Wood (1879) L.R. 9 Ex. 190 at 196 stated that the rule of audi alteram partem: “is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.”…It follows therefore that a hearing which is in breach of the twin pillars of fair hearing: audi alteram partem or nemo judex in causa sua, renders the hearing liable to be set aside or declared invalid by the court. The court would treat the situation as if such hearing never in fact took place.”
Besides, it should be noted that motions passed by a House of Assembly is merely advisory and does not have the effect of a law duly passed by a House otherwise, there would be no difference between a motion and a law duly passed. Therefore, in implementing such motions, a law duly passed by the House takes precedence over motions and resolutions of the House. Hence, the LGAL takes precedence over the gratuitous motion of the House inviting the Governor to dissolve the Imo State Local Government Service Commission and appoint other people in replacement of the claimants. So, it simply follows that when such motion was passed, if the Governor intended to accede to it, the provisions of section 64(4) of the LGAL must be strictly complied with, by the Governor formally presenting to the House, a request [called ‘an address’ by section 64(4) of the LGAL] to remove the claimants and stating the reasons thereof and the House inviting the claimants to hear their side and considering the matter subsequently and rendering their decision via a simple majority vote. That is the function of the House under section 64(4) of the LGAL. And by virtue of section 64(4) of the LGAL, the reason for the request for the removal must be clearly stated in the address to the House and in the instrument of removal otherwise, the law would not have given the grounds on which the claimants could be removed. The implication of the law stating those grounds is that it must be shown that their removal is done pursuant to any or all of the grounds. What I am trying to say is that, before any removal of the claimants from office during the subsistence of their tenures could be valid, the removal must be done pursuant to those grounds clearly stated by the law and must be shown to have been so done otherwise, imposing those conditions would amount to naught. It simply means that the claimants could not be removed without giving and proving one of the reasons outlined by the LGAL.
From the facts presented before the Court, the House suo motu took it upon itself to invite the Governor to sack the claimants for failure to curb the malignant cases of ghost workers and general indiscipline in the Local Government workforce, and for persistent failure to present annual report for the consideration of the House – see p. 2 of Exhibit B-B3 under the caption “Motion for the Dissolution of the Local Government Service Commission”. Evident on the face of exhibit B-B3 was that the claimants were neither invited nor heard before the House reached its decision. Evident too, is the fact that it was not the Governor that activated the House or that petitioned the House asking for its approval to remove the claimants. In addition, no letter of removal was issued in the instant case. Therefore, there was no proof that the claimants were removed pursuant to the resolution of the House. There is equally no proof that the claimants were invited and heard by the House before rendering a decision that they be removed. There is no proof too that the 1st defendant herein [the Governor] forwarded any formal request to the House asking for approval to remove the claimants. It simply follows that the procedure adopted herein by the House infringed the twin pillars of natural justice: the House was the accuser and the judge and, at the same time, did not hear the claimants before rendering a decision on the offences crafted against them. This is a clear travesty of section 36 of the 1999 Constitution and the rules of natural justice.
I have earlier held that a resolution of the House is merely advisory and that, where such a resolution conflicts with a law duly passed by the same House, the resolution would give way. I have also earlier held that notwithstanding the passage of any resolution, the provisions of section 64(4) of the LGAL must be complied with before the 1st defendant could effectively remove the claimants from office. It is clear from section 64(4) of the LGAL that the House could not remove the claimants from office. It is the Governor who could. And in doing this, the Governor must comply strictly with the provisions of section 64(4) of the LGAL by formally requesting the approval of the House to remove the claimants and giving the reason(s) for the request and formally issuing an instrument of removal which clearly stated compliance with the procedure and that the removal was pursuant to one or all reasons outlined by law. It does not appear to me to matter that the House has its personal grouse earlier expressed in its resolution, the procedure outlined in section 64(4) must still be complied with even if it meant a circuitous exercise. This is so because the House has neither power to remove the claimants from office nor power to initiate the procedure. It becomes clear from the foregoing that where the House suo motu passed a resolution for the removal of the claimants, such resolution is merely advisory and if the Governor finds merits in it, the Governor must initiate the procedure for their removal by presenting a formal request to the House to approve their removal, even if it meant citing the same resolution of the House as His ground for the request. It follows that in whatever way one looks at it, the law was NOT observed in the removal of the claimants from office.
Now, counsel to the defendants has stated in his address that the claimants absconded from office. I have combed the Statement of Defence and the written deposition on oath of DW1, I could not find any place where it was pleaded that the claimants absconded offices and neither could I find in the evidence of DW1 any testimony relating to the abscondment of the claimants. I don’t therefore know how the counsel came by the said evidence being on record before the Court. There is clearly no such evidence on record. This is a complete figment of the imagination of counsel. I wish to remind counsel that he is not in a position to give evidence. It follows that this piece of afterthought is a mere ipse dixit of counsel. And even if by any stretch of chance, there was any evidence in that regard, it amounts to evidence led on unpleaded facts, which goes to naught.
In addition, it shows a serious inconsistency in the defence presented by the defendants. A party must be consistent in the case presented before a court – see Uko v. Utuk Construction and Marketing Company Ltd in Liquidation & Ors (2011) LPELR-9120 (CA) 10-11, paras. G-A and Emeje v. Positive & Ors. (2008) LPELR-4102 (CA) 25, paras. D-F. The defendants cannot be allowed at his stage to depart from the defence earlier presented in their Statement of Defence and evidence-in-chief and on which the case was fought. Issue of abscondment was also not stated by the House as the reason for its motion. Thus, this is in sharp contradiction to the Statement of Defence joining issue that the claimants were removed pursuant to the resolution of the House. And whether or not the claimants absconded, before they could be removed from offices, the Governor ought to approach the House and lay this as the reason for wanting to remove them, which was not done in the instant case. It follows that the issue of abscondment is even a nonstarter.
Good enough, the CW1 under cross-examination has stoutly denounced the imputation that the claimants absconded from offices and maintained that they could not have had any reason to abscond. When this is taken along with the evidence on record that the claimants were forcibly evicted from office, which evidence is unshaken under cross-examination, together with the undisputed fact that the 3rd-6th defendants were inaugurated when the tenures of offices of the claimants were still running, it becomes unassailable that the story of the claimants that they were forcibly evicted is cogent and proved. How else does one explain the inauguration of the 3rd-6th defendants during the currency of the tenures of the claimants? More so, the defendants, through DW1’s evidence-in-chief via his deposition adopted at the trial clearly stated that the claimants were removed from office pursuant to the resolution of the House of Assembly and that the 3rd-6th defendants were inaugurated in their stead– see paragraphs 10-14 and 16-17 thereof. But how this was physically done was not stated, but this nevertheless puts a lie to the new defence that the claimants absconded their offices apart from establishing serious contradiction in the defence presented by the defendants. Admission against interest is valid against the person that made the admission. Implicit is that the defendants admitted that it removed the claimants from their offices but failed to state by what means this was physically done.
Common sense dictates that the claimants would not willingly vacate their offices during the currency of their tenures. And there is no evidence before the Court that they resigned their appointments. In the absence of any contrary evidence from the defendants to show how the claimants relinquished their offices, which were still running at the time the 3rd-6th defendants were inaugurated, then, the Court is left with no option than to take as cogent, the evidence that they were forcibly evicted from office. This is more so, when no letter of termination is issued to the claimants from which the Court could deduce the reason and means by which the claimants’ offices became vacant and how the 3rd-6th defendants filled them up. Therefor, the evidence at paragraph 17 of the deposition of CW1 that the claimants were forcibly evicted by the 2nd defendants from their offices on 3rd February 2012 after the inauguration of the 3rd-6th defendants with the aid of security forces and the 3rd-6th defendants installed in their stead becomes cogent as the means adapted to remove the claimants from office and to put the 3rd-6th defendants in office. I can therefore not find any flaw in the storyline of the claimants as urged by counsel to the defendants. From the foregoing, it followed that the claimants were not lawfully removed from their offices.
Where the power conferred by legislation or statute is not exercised in accordance with the laid down procedure, it is not that power that was exercised. An irregular exercise of power is what is called illegality. Hence, once a power is not exercised in accordance with laid down procedure, it cannot be protected under the enabling law. It simply means the person who exercised such power went on a frolic of his own and such irregular exercise of power must be declared null, void and of no effect ab initio. In consequence, I hereby declare as null, void and of no effect ab initio the removal of the claimants from office by the 1st and 2nd defendants.
I now come to the argument of counsel to the defendants that there is a contradiction in the inaugural date of the 3rd-6th defendants as presented by the claimants and that this contradiction is fatal to the case of the claimants. The contradiction in issue is said to arise from dichotomy in the evidence-in-chief of CW1, which gave the inaugural date as 12th February 2012, and that of Exhibit C-C1, which stated the inaugural date as 4th February 2012. It is my view that this contradiction is immaterial. I have checked Exhibit C-C1 and could not even find any statement made with regard to the date of inauguration of the 3rd-6th defendants to which the alleged date of 12th February 2012 could be attached. In addition, there is no date at all mentioned relating to the inauguration of the 3rd-6th defendants. The only dates mentioned therein were the dates the claimants themselves were sworn in as chairman and members of the Commission. However, I found that the date 4th February 2012 was mentioned in Exhibit D as the date the 3rd-6th defendants were swore in. I therefore concluded that the counsel to the defendants had Exhibit D in mind but erroneously referred to Exhibit C-C1.
I have checked the witness deposition on oath of the CW1 and found that the date 3rd February 2012 was clearly stated in paragraph 17 thereof as the date the 3rd-6th defendants were inaugurated. From the above, it is clear that there is contradiction between the dates of 4th February 2012 mentioned in Exhibit D and that of 3rd February 2012 contained in the witness deposition of CW1, which is evidence before this Court. However, I cannot find where the CW1 in his evidence-in-chief and under cross-examination gave evidence of 12th February 2012 as the inaugural date of the 3rd-6th defendants. So, the contradiction is between the 3rd February 2012 and the 4th February 2012. The 3rd February 2012 was also copiously pleaded in paragraph 15 of the Statement of Facts. And since the testimony before this Court stated the date to be 3rd February 2012 and this date was also confirmed in the testimony of the defendants as the date of the inauguration, this conflict is resolved. The 4th February 2012 contained in Exhibit D must be regarded as an error arising from lapse of memory, which is common when giving dates.
What is material to the case is whether or not there was inauguration of the 3rd-6th defendants, and this is not in dispute so, minor discrepancy in giving the exact date of the said inauguration cannot be fatal to the case of the claimants. In Mohammat Sele v. The State (1993) LPELR-3030 (SC) 13-14, paras. E-A, the Supreme Court stated the law on the effect of contradiction in evidence in the following words:
“Contradictions, to be fatal to prosecution’s case, must go to substance of the case and not be of a minor nature. If every contradiction, however trivial to the overwhelming evidence before the court will vitiate a trial, human faculty to miss some minor details due to lapse of time and error in narration in order of sequence will make nearly all prosecution fail. Thus if the contradiction do not touch on a material point or substance of the case it will not vitiate a conviction once the evidence is clear and believed or preferred by the trial court.”
This is in criminal case where the standard of evidence required is proof beyond reasonable doubt, how much less, in a civil case, where the standard required is that of balance of probability. Even if the 12th and 4th February 2012 were the dates given by the claimants, in my view, this would not still have been material. Both sides are agreed that the 3rd-6th defendants were inaugurated in February 2012. The only area of divergence would be the exact date in February 2012. And the point that is material is the inauguration of the 3rd-6th defendants. Since the parties are agreed on the fact of the inauguration, even if I discountenance the evidence of the claimants on the inauguration, the evidence of the defendants remains intact. But as it is, there is no basis for me to jettison the whole of the evidence on the inauguration. I can only jettison the evidence relating to the date it took place. In this event, I accept the evidence of the defendants that the inauguration took place on 3rd February 2012. It is an admission against interest and therefore preferred – see Onigbinde v. S.B. Olatunji Global Nig. Limited (2015) LPELR-25943 (CA) 19, paras. B-C. It makes no difference to the case of the claimants and that of the defendants whatever date is chosen as the inaugural date amongst the three, so far the date is in February 2012. In effect, in whatever way one looks at it, the contradiction in the date of inauguration is immaterial, and I so hold.
I now come to the issue that the claimants did not place their conditions of service before the Court to entitle them to the judgment of the Court. I have checked Exhibits A, A1, A2, and A3 and found that the conditions of service were incorporated in the letters of appointment of the claimants as Chairman and members of the Commission and were clearly spelt out without the need to consult any other source for their completeness – see paragraph 2 of each of the four letters of appointment and the Note: (i) & (ii) added after paragraph 4 of each of the letters. Paragraph 3 of each letter went on to state that these conditions of service incorporated in paragraph 2 thereof are to be found in Circular No. SGI/S.99/S.6/T.2/100. The letters of appointment have therefore sufficiently covered the field on the issue of conditions of service needing no further reference to another source. So, what is the grievance of the counsel to the defendants? Is he saying that the claimants must still go further to tender the documents from which the conditions of service were culled and incorporated into the letters of appointment by the defendants – For what purpose? This argument is standing logic on its head, apart from the fact that it cannot be the position of law. The claimants only need tender the conditions of service separately when it is not incorporated into the letters of appointment. Where they are incorporated, this necessity is dispensed with, notwithstanding that there is another document from which the letters of appointment culled them.
It is only when the claimants complain that the conditions of service were not in accordance with the circular that they need tender this circular and there is no such complaint here. If the defendants need the circular in question to prove their defence they must tender it. The claimants have tendered their letters of appointment, which they needed to prove their conditions of service and the Court found them sufficient. This is because tendering the circular in question would not add any value to the case of the claimant. The claimant only need tender the documents that would prove their case and not a host of relevant documents. There is no law that says a claimant must tender the conditions of service separately when this is incorporated into and clearly spelt out in the letter of appointment: in a nutshell, when the field is covered sufficiently by the letters of appointment of what need is the circular in question?: Nil. I am fortified by Texaco Overseas (Nigeria) & Anor. v. Rangk Limited (2008) LPELR-9850 (CA) 19, para. B, where the Court of Appeal held that “Terms and conditions properly incorporated in a contract are enforceable against the parties thereto who consciously have agreed to regulate their relationship by such terms and conditions.” The letters of appointment constitute the contract between the parties, and in the letters, the conditions of service of each of the claimants were clearly spelt out. I therefore hold that the argument of the counsel to the defendants in this regard is misplaced and is accordingly dismissed as lacking merit.
I now come to the argument that there is no reasonable cause of action because the claimants who said their appointment were terminated failed to lead evidence to establish this. Though, counsel to the claimants has replied this argument by saying the case of the claimants was not termination but forcible eviction from office and obstruction from performing their duties. I cannot find any difference between termination and forcible removal from office and obstruction from performing duty. The effect of the forcible eviction and obstruction from performing their duties is equal to termination of appointment. To begin to make a distinction amounts to an attempt to distinguish between six and half a dozen. There is absolutely no distinction. My take on this is that, the claimants have laid sufficient evidence before the Court to justify the inference that their appointments were terminated. If they were forcibly evicted from office and the 3rd-6th defendants installed in their offices, what else were the claimants expected to prove to show that their appointments were terminated. This becomes more poignant in the face of admission against interest by the defendants via DW1 deposition that the claimants were removed from office pursuant to the resolution of the House of Assembly – see paragraphs 10-14 and 16-17 thereof. I therefore hold that the claimants have reasonable cause of action and have established same.
Having dealt with the issue of reasonable cause of action, I move to the argument that because the letters of appointment of the claimant bore different dates of appointment, they would not have common cause of action. I disagree with this view. The case of the claimants was that they were forcibly removed from the same office and thereafter prevented from accessing their physical appointive offices and that, the 3rd-6th defendants were illegally appointed in their stead, during the currency of their tenures. All these acts were done on the same 3rd February 2012. From the above, it is clear that the claimants have common cause of action and that their actions could be jointly or severally brought because the same facts and questions arose for determination in relation to the four of them. This is in tandem with Order 13, Rule 1 of the NICN Rule, which provides that:
“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment.”
Apart from the fact that the counsel to the defendants misconstrued what is meant by ‘common cause of action’, the authority of Bossa v. Julius Berger Plc cited by the counsel to anchor his submissions is totally irrelevant to this case, which was commenced sequel to the NICN Rules. I therefore hold that there was a common cause of action and that this case was properly commenced in accordance with the rules of this Court.
Having come to this point, I must hold that the claimants are ordinarily entitled to be reinstated but since their respective tenures lapsed in the course of this action, they are entitled to the arrears of their salaries and allowances as stated in their conditions of service, which, as I found earlier on, were incorporated into their letters of appointment. There is no dispute on the remainder of the tenures of offices of the claimants truncated by the actions of the 1st and 2nd defendants, so the claimants are entitled to the arrears of their salaries for their unexpired tenures as claimed. There is also no dispute on the figures as computed by the claimants.
I now come to the issue of which order to make regarding the 3rd-6th defendants, whom the claimants have urged the Court in their pleadings to declare as illegally occupying the offices and prayed the Court to order them to refund all the salaries illegally paid them since the usurpation of their unexpired tenures. I took note of the fact that the tenures of offices of the claimants had expired during the course of this suit and that the claimants have claimed the alternative relief in the place of relief (ix). I also took note of the fact that the claimants did not canvass any arguments in respect of the issue of ordering the 3rd-6th defendants to refund the salaries earned by virtue of their illegal occupation of the claimants’ offices. I also took note of the fact that this issue was not formally withdrawn. Hence, in dealing with the issue, it is necessary first to examine the questions of claiming the alternative relief in place of relief (ix) and failure to canvass argument in support of the relief that the 3rd-6th defendants be ordered to refund the moneys illegally earned to the coffers of the government.
First, on alternative reliefs in actions, the Supreme Court in G.K.F. Investment Nigeria Ltd v. Nigeria Telecommunications PLC (2009) LPELR-1294 (SC) 32, paras. D-G, says:
“I will now deal with an alternative claim and the duty of the court in such claim. Where a claim is in the alternative, the court should first consider whether the principal or main claim, ought to have succeeded. It is only after the court may have found that it could not, for any reason, grant the principal or main claim, that it would now consider the alternative claim…In other words, where there are alternative reliefs as in the instant case leading to this appeal, once one of the reliefs is granted, the other relief cannot be granted as there would be no need to do so.”
From the pleadings, it is clear that the claimants claimed the alternative relief in alternative to all the nine primary or main reliefs and not to the ninth relief alone, as now urged at the address stage, so, the claimants or their counsel cannot alter their case by mere address without amendment. Though, I am aware of the position of law that any relief no longer desired could be abandoned by clearly stating so. I took note that this has not been done in the instant case. I have also checked and observed that the major reliefs relating directly to the claimants can no longer be granted in view of the fact that the offices of the claimants have lapsed by effluxion of time in the course of prosecuting this action, and this fact is recognized by the claimants themselves, which is why the counsel to the claimants have urged the Court to grant the alternative relief in place of relief (ix). So, reliefs (i), (v), and (ix) are no longer grantable. All the other main reliefs do not relate to the claimants in any way but purely to refund of monies earned by the 3rd-6th defendants to government coffers.
As it is now, the only relief, which could be granted to assuage the injuries of the claimants, is actually the alternative relief. The implication of arguing that the alternative relief be granted instead of relief (ix) is that the principal reliefs have been abandoned in accordance with the Supreme Court’s authority cited above because, once I grant the alternative relief, which I have held to be the only relief that is now grantable to assuage the injuries of the claimants, there is really no need to consider the other reliefs that dealt directly with the claimants. In any way, these reliefs are no longer grantable as they have been overtaken by effluxion of time. A court of law cannot make an order in vain.
I now come to the issue of failure on the part of counsel to the claimants to canvass arguments in favour of the issue that the 3rd-6th defendants be ordered to refund all the salaries earned by virtue of their illegal appointment. The legal effect is that the claimants have abandoned the issue and the relief anchored on it – see The SPDC Ltd v. Okitipupa Oil Palm PLC & Ors. (2005) LPELR-3203 (SC) 9, paras. A-B. Nevertheless, I will proceed to look at this issue because it concerns payment of revenue to the public coffers. I have searched for authorities on the issue and could not find one where, in a case of this nature, the Court ordered the defendants who were irregularly appointed to replace public officers illegally dismissed, to refund the monies earned by reason of that irregular appointment. I however find the ratio of Uwani Musa Abba Aji (JCA) in Governor of Ekiti State & Anor. v. Akinyemi & Ors. (2011) LPELR-4218 (CA) 49-50, paras. G-B useful, wherein His Lordship clarified similar issue thus:
“The appeal fails completely as it is devoid of any merit. It is accordingly dismissed. The judgment of Hon. Justice A.K. Fowe delivered on Monday 17th day of January 2011, is hereby affirmed, save for the order restraining the Appellants from further appointing other person(s) to replace the Respondents before the end of their 3 year tenure as provided under the Local Government service commission Law, No. 2 of 2000, the respondents having been granted their alternative prayer for payment of their total remunerations up to and including 11th February, 2011.” [Underlining supplied for emphasis]
It appears clear that the above ratio established that once payment of arrears of salaries and allowances is made to appointees illegally terminated, there might be no need to stop the defendant from appointing others in their stead. And inferentially, therefore, there might be no need to order repayment of salaries earned by those appointed in the stead of those illegally terminated. In view of the fact that the tenures of the claimants lapsed during the trial of this case and in line with the above ratio decidendi, I hereby grant the alternative relief and refuse all the main reliefs or other reliefs. The claimants are each to be paid the sums claimed therein to each of the 1st, 2nd, 3rd, and 4th claimants respectively. I also grant cost of N50,000 [Fifty Thousand Naira] each to the four claimants. The judgment of the Court is to be complied with within one month of its delivery failing, which the judgment sum shall begin to attract 10% interest rate per annum.
Judgment is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Judge
NATIONAL INDUSTRIAL COURT OF NIGERIA
