Mr. Ekpuk Silas Udom -VS- The Hon. Attorney General And COMMISSIONER OF JUSTICE OF AKWA IBOMDEFENDANT STATE 1 OTHER

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI

DATE: 17^TH JUNE, 2019 SUIT NO: NICN/UY/25/2016

BETWEEN:

EKPUK SILAS UDOM ..……………………….. CLAIMANT

AND

THE HON. ATTORNEY GENERAL AND

COMMISSIONER OF JUSTICE OF AKWA IBOMDEFENDANT

STATE

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 House of Assembly Service Commission by the Defendants by a letter dated 9^th January, 2013 but effective from the 3^rd of January, 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 July, 2015 when thepayments were stopped. In spite this, the Claimant continued to work for the Defendants until sometimes in September, 2016 when the Defendants without notice to the Claimant or any member of the Commission, appointed a Chairman and four members to replace the Claimant and other members of the Commission by publications in the media. Aggrieved, the Claimant took out a Complaint on 6^thOctober, 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 House of Assembly Service Commission is as contained in Akwa Ibom State House of Assembly Service Commission Law Cap. 58, Laws of Akwa Ibom State 2000 and the Akwa Ibom State House of Assembly Service Commission (Amendment Law) 2007 and, can only be terminated in accordance with the provision of that law.

(b) A declaration that the appointment of new members into the Akwa Ibom State House of Assembly Service Commission to replace the Claimant as 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 Akwa Ibom State House of Assembly Service Commission Law Cap. 58 Laws of Akwa Ibom State 2000 and the Akwa Ibom State House of Assembly Service Commission (Amendment Law) 2007.

(c) A declaration that the Claimant is entitled to the arrears of salary and allowances due to him as member of the Akwa Ibom State House of Assembly Service Commission from the month of August, 2015 when the defendants stopped paying the salary and allowances to the 2^nd day of January, 2017 when the tenure of his office would have expired.

(d) A declaration that the Claimant is entitled to be paid all the salary and allowances and the severance package due to him as member of the Akwa Ibom State House of Assembly Service Commission up to and including the 2^nd day of January, 2017 when the tenure of his office would have expired by law.

(e) N10,625,083.64 (Ten Million, Six Hundred and Twenty Five Thousand, Eighty Three Naira, Sixty Four kobo) being the arrears of salary and allowances due and payable to the Claimant by the Defendants from August 2015 till December, 2016 when the Defendants would have stopped paying the Claimant’s salary and allowances at the end of his tenure on the 2^nd day of January, 2017.

(f) 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 House of Assembly Service Commission on the 2^nd day of January, 2017.

(g) N250,002.00 (Two Hundred and Fifty Thousand and Two Naira) being annual leave grant due and payable to the Claimant for 2015 and 2016.

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

At the trial, the Claimant testified for himself as CW and tendered one (1) exhibits in spite of front loading two (2) other documents, to wit, First Bank Statement of Account 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 House of Assembly Service Commission by the defendants by letter of 9^th January, 2013 signed by Hon. UmanaOkonUmana, the former Secretary of the State Government effective from the 3^rd of January, 2013. By the provision of the Akwa Ibom State House of Assembly Service Commission Law Cap. 58, Laws of Akwa Ibom State 2000 and the Akwa Ibom State House of Assembly Service Commission (Amendment Law) 2007, the tenure of the Claimant’s appointment as member of the Akwa Ibom State House of Assembly Service Commission was to be for a period of four (4) years ending on the 2^nd day of January, 2017. The Claimant was paid a salary and fringe benefit after tax of N625.004.92 per month. Apart from the salary and fringe benefit due, the Claimant was also entitled to Annual leave grant of N125,001 per annum being 10% of his annual salary and Severance allowance N3,750,330.00 being 300% of his annual salary. 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 July, 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 in September, 2016 and without notice to the Claimant or any other member of the Akwa Ibom State House of Assembly Service Commission, the Defendants appointed a new Chairman and four (4) members of the Akwa Ibom State House of Assembly Service Commission to replace the Claimant and other members of the commission and published the appointment in many 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 House of Assembly Service Commission, the tenure of office of the Claimant as member of the Commission was five (5) monthsbefore expiration. 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 seventeen (17) months from August, 2015 to 2^nd January, 2017 when the tenure of office of the Claimant would have expired and leave allowance for 2015 and 2016. 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:

That the Claimant is not a member of the House of Assembly Service Commission.

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.

That in addition to the laws cited by the Claimants, the Claimants 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.

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.

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

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 (sic) 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.

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.

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

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

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.

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.

That the Claimant is not entitled to severance package or allowance at all or any of the Claims listed and numbered as 15 (a) to (g) in the Statement of Facts.

Reply to Statement of Defence

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

That he was a member of the Akwa Ibom State House of Assembly Service Commission as at the time of filing this suit and remain so until the 2^nd day of January, 2017 when the tenure of his office expired.

That he duly completed and submitted the assets declaration forms to the Code of Conduct Bureau on 7^th day of May, 2013 having done the declaration in the Uyo High Court in compliance with the directive immediately after the appointment.

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.

That his appointment did not expire in July, 2015 but that his appointment was for a period of four (4) years which ended on the 2^nd day of January, 2017 and that is entitled to his severance package, leave grant and all other allowances and entitlements.

Defendants’ Submission:

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

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?
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 House of Assembly 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 of Constitution 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 4 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 prove by 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 same or any evidence of 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 the 7^th Schedule 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 House of Assembly Service Commission?

The Defendants answered this in the negative and submitted that the Claimant is not entitled to any 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 the salary by Black’s Law Dictionary, online 2^nd Edition as a recompense made to a person for his pains and industry in another person’s business.

Applying these definitions to 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 N10,625,083.64 as arrears of Salary and allowances from September, 2016 when the defendants appointed new members to replace the Claimant to December, 2016 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 2^nd 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 December, 2016 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.

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:

Whether the appointment of new members of the Akwa Ibom State House of Assembly Service Commission to replace the Claimant without following due process was lawful while the tenure of the Claimant was subsisting?
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 House of Assembly 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 a new Chairman and other members of the Akwa Ibom State House of Assembly Service Commission without following due process while the tenure of the claimant and other members was subsisting was most unlawful, illegal and unconstitutional. The Claimant then stated that the Claimant’s appointment was statutory by virtue of section 4 (1) of the House of Assembly Service Commission Law, Cap. 58 Laws of Akwa Ibom State 2000, which fixed the tenure of office of members of the Commission for three (3) years with effect of the date of appointment. And by Section 3 of the House of Assembly Service Commission (Amendment) Law, 2007 which came into force on the 28^th day of May, 2004 amended Section 4 (1) of the House of Assembly Service Commission Law Cap. 58 Laws of Akwa Ibom State 2000, to extent the tenure of members, including the Claimant, to four (4) years from the date of his appointment. From Exhibit CW 1, the Claimant’s appointment took effect from the 3^rdday of January, 2013 and was to end on the 2^ndday of January, 2017.

On the procedure for the removal of members of the Commission, the Claimant referred the Court to Section 4 (a) (i) of the House of Assembly Service Commission (Amendment) Law, 2007, thus:

“The Chairman or any member of the Commission shall be removed from office by the Governor where a request is so made by the Speaker, acting on a resolution supported by two-thirds majority of members of the House praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of the mind or body or any other cause) or for misconduct.”

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 purported removal and replacement of the Claimant 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 the reasons were baseless, frivolous, unreasonable and worthless.

Thereafter, 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 have 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 before the 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 18^th 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 1^st 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 House of Assembly Service Commission as provided for in section 4 (a) (i) of the House of Assembly Service Commission (Amendment) Law, 2007 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 House of Assembly 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 a member of the Akwa Ibom State House of Assembly 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 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 this case. The Defendants’ only witness admitted in cross-examination that he never worked in the Akwa Ibom State House of Assembly 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 of the Akwa Ibom State House of Assembly Service Commission from the 3^rdday of January, 2013 to the 13^th day of June, 2017.

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 House of Assembly 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 ask for reinstatement or damages 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 by the Defendants to Order 45, Rule 5 of the rules of this court 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’s case is not predicated 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, damages 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 (Nigeria) Limited (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 claimed, neither the court nor the Defendants 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 as Chairman of Akwa Ibom State House of Assembly Service Commission by a letter of 9^th January, 2013. The Defendants were paying the salaries and allowances until August, 2015 when they stopped. Under this factual situation, the Defendants without notice on 14^th 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 these undisputed facts is to narrow down the areas of contentions between the parties as reflected in the two (2) issues for determination submitted by the Claimant:

This issue deals with whether due process was followed in the appointment of a new Chairman to replace the Claimant as the Chairman of the Akwa Ibom State House of Assembly Service Commission before the expiration of his tenure. 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. The Claimant relied on House of Assembly Service Commission Law, cap. 58 which established the Akwa Ibom State House of Assembly Service Commission andsection 3 of the House of Assembly Service Commission (Amendment) Law which conferred a tenure of four (4) years to members of the State Assembly Service Commission. The Claimant also relied on section 4 of the amended lawto submit that before a governor can remove anymember of the Akwa Ibom State House of Assembly 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. Since this procedure was not followed, the purported removal and replacement of the Claimant was illegal, unlawful, null and void.

On the other hand, the position of the Defendants is that the appointment of the Claimant as a Chairman of the State House of Assembly 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 a member of the State Assembly Service Commission. This is by virtue of the Governor’s Oath of Office in the 7^th 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 establishment of public agencies and States House of Assembly Service Commissions is not there. So the only constitutional provision applicable here is section 11 (1) (a) and (b) of part 1 to the fifth schedule on declaration of assets. Even here, 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.

A casual look at the facts of this case clearly shows that the procedure for the removal of the Claimant as the Chairman of the State Assembly Service Commission was not done in accordance with the dictates ofSection 4 (a) (1) of the House of Assembly Service Commission (Amendment) Law. I have no difficulty therefore in holding that the action of the Defendants are 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. 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 statutory provisions in terms of 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 entitlements.

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 by the Defendant, 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) 42. See also the Supreme Court case ofShena Security Company Limited v. Afropak (Nigeria) Limited (2008) 5 SCNJ 86-87, whereI. T. Muhammad, JSCput the position beyond any doubt:

“The 2^nd 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 House of Assembly Service Commission is as contained in Akwa Ibom State House of Assembly Service Commission Law Cap. 58, Laws of Akwa Ibom State 2000 and the Akwa Ibom State House of Assembly Service Commission (Amendment Law) 2007 and, can only be terminated in accordance with the provision of that law.

(b) That the appointment of new members into the Akwa Ibom State House of Assembly Service Commission to replace the Claimant as 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 Akwa Ibom State House of Assembly Service Commission Law Cap. 58 Laws of Akwa Ibom State 2000 and the Akwa Ibom State House of Assembly Service Commission (Amendment Law) 2007.

(c) That the Claimant is entitled to the arrears of salary and allowances due to him as member of the Akwa Ibom State House of Assembly Service Commission from the month of August, 2015 when the Defendants stopped paying the salary and allowances to the 2^nd day of January, 2017 when the tenure of his office would have expired.

(d) That the Claimant is entitled to be paid all the salary and allowances and the severance package due to him as member of the Akwa Ibom State House of Assembly Service Commission up to and including the 2^nd day of January, 2017 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 N10,625,083.64 (Ten Million, Six Hundred and Twenty Five Thousand, Eighty Three Naira, Sixty Four kobo) being the arrears of salary and allowances due and payable to the Claimant by the Defendants from August 2015 till December, 2016 when the defendants would have stopped paying the claimant’s salary and allowances at the end of his tenure on the 2^nd day of January, 2017.

(b) 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 House of Assembly Service Commission on the 2^nd day of January, 2017.

(c) The Defendants shall pay the Claimant N250,002.00 (Two Hundred and Fifty Thousand and Two Naira) being annual leave grant due and payable to the Claimant for 2015 and 2016.

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