| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
————————————————– Suit No: NICN/OW/83/2015 Petitioner: The State: Exparte Obi Ejeshi And Respondent: Callistus Ekenze ANOR Date Delivered: 2017-07-04 Judge(s): HONOURABLE JUSTICE O. Y. ANUWE Judgment Delivered Representation: J. C. Uwazuruonye with R. O. Uwazuruonye, I. O. Mirikwe, C. C. Iworie and D. S. Uzoma for the Claimant. Chief E. O. Onyema for the Defendants. JUDGMENT The applicant commenced these proceedings on 21st December 2015 by way of an application for judicial review which he brought under Section 17 (1) and (2) of the National Industrial Court, Act 2006 and under Order 22 Rules 1 (1) (a) (b); 2 (1) b; 3 (1) and 5 (2) of the National Industrial Court Rules 2007. The reliefs sought by the applicant are as follows: (a) An order of CERTIORARI bringing into the Court for the purpose of being quashed the proceedings including the decisions of the Respondents leading to the writing of the letter of SUSPENSION of the Claimant from duty and non-payment of his salaries and allowances which letter dated 23/9/2015 with Ref No: P.9/S.6/1V/211 by the 2nd Defendant based on the directives of the 5th Defendant who is not the EMPLOYER of the Claimant alleging fraudulent acts against the Claimant when he has no competence to do so having acted in excess of his jurisdiction or powers. (b) An order against the Defendants/Respondents for the immediate reinstatement of the Claimant/Applicant to his post and to pay him his accumulated arrears of salaries and entitlement pertaining to his office as Permanent Secretary. (c) An order of injunction restraining the Defendants/Respondents from taking any other disciplinary action against the Claimant/Applicant by punishing him on account of this suit instituted against the Defendants/Respondents. In support of the application is a 40 paragraph affidavit deposed by the applicant himself. He stated that he was employed by the Imo State Government through the State Education Board on 11/9/84 as Higher Commercial Instructor and posted to Emekuku Girls Secondary School on salary Grade Level 08. His service was transferred from Secondary Education Board to the Ministry of Finance and Economic Planning on 15/1/97 vide a transfer of service letter dated 15/1/95. He rose through the ranks and was appointed to the post of Permanent Secretary in the Imo State House of Assembly Service Commission on 27/10/2014. Before his appointment to the post of Permanent Secretary, he was the Director of Accounts in the Ministry of Agriculture and Natural Resources, Imo State. As a Director in the said Ministry, he became a member of the Supervised Agricultural Credit Loans Board (SACLB). The said SACLB has a General Manager, who is also the Chief Executive Officer, and an Accounting Officer who keeps custody of the Board’s Cheques, prepares cheques for beneficiaries of Agricultural loans and works in conjunction with the Relationship Manager of Access Bank, Owerri, where the SACLB’s Account is domiciled, for authorization of cheques. The General Manager/Chief Executive Officer and the Accounting Officer are also the ones who shortlist beneficiaries of loans; prepare schedules of Bank for disbursement of funds and authorize payments to the beneficiaries of the loans. The applicant said he was only a co-signatory to the cheque of the SACLB. After the General Manager/Chief Executive Officer has signed the cheque, the Accounting Officer brings the cheque to him to counter-sign after which the signed cheque is issued to the payee after the Accounting Officer must have contacted the Relationship Manager of Access Bank. The last cheque the applicant counter-signed with the General Manager/Chief Executive Officer of the SACLB was on 4/10/2015 before he was appointed a Permanent Secretary and posted to the Imo State House of Assembly Civil Service Commission. The applicant was surprised to receive a query on 2/6/2015 from the 4th Respondent accusing him of illegal issuance of cheques and withdrawal of various sums of money from the account of the SACLB. He was directed to submit his answer to the query to the 4th Respondent not later than 4:00pm on Monday 1st June, 2015. He answered the query on the same day he received it and submitted his answer to the 4th Respondent. The answer was received by the 4th Respondent on 3/6/2015. In his answer, he denied the allegations and explained his role as a member of the SACLB and as a Director of Accounts in the Ministry of Agriculture and Natural Resources. On 24/6/2015, in a letter written by E. I. Igharo, Permanent Secretary in the office of the Secretary to the State Government, he was directed to appear before the Personnel Management Board (PMB) on 25/6/2015 at the office of the 3rd Respondent. On 26/6/2015, he received another letter by the same person directing him to appear before the PMB on 29/6/2015. In both letters he was requested to appear with some documents listed in the letters. Since the documents were not in his custody, he wrote a letter dated 29/6/2015 to E. I. Igharo to explain that he did not have custody of the requested documents. He did appear before the PMB which was chaired by Mr. Callistus Ekenze, the Head of Service of Imo State. Mr. Ezema Eche, Miss Ibega and Asonye Igwe were members of the PMB. He presented his defence to the PMB and he relied also on his answer to the query which he submitted to the Secretary to the Imo State Government. In his answer to the query, he mentioned the General Manager/Chief Executive Officer of the SACLB, Dr. Humphrey Okere, and the Accounting Officer, Patrick Osuji, as the persons who were in custody of the cheque booklets of the SACLB but the PMB did not present the General Manager/Chief Executive Officer and the Accounting Officer for him to confront them with respect to the issue of the custody and issuance of cheques. The PMB also ignored schedule of payments given to him by the Accounting Officer which he submitted to the PMB even as his explanations in the answer to query were not denied by the General Manager/Chief Executive Officer and Accounting Officer of SACLB. On 2/10/2015 he received a letter dated 23/9/2015 signed by the 2nd Respondent suspending him from duty indefinitely without pay. Following the suspension, the applicant’s solicitor, J. C. Uwazuruonye Esq. of J. C. Uwazuruonye & Co., wrote a pre-action notice dated 19/11/2015 to the Respondents and demanded copies of the record of proceedings including the decisions leading to his suspension, which record he intended to use in the suit he intended to file in court to challenge his suspension from duty indefinitely without pay. The Respondents refused to give him copy of the record notwithstanding his several efforts. The 5th Respondent who directed his suspension from duty without pay is not his employer and has no competence to direct his punishment. It is only his employer, the Imo State Civil Service Commission that can punish him. The Applicant was informed by his solicitor, J. C. Uwazuruonye, that the Respondents did not comply with Rules 04305 and 04306 (iv) (vii) (xi) and (xii) of the Imo State Public Service Rules. This is so as the 5th Respondent has no role to play in the applicant’s trial and punishment. The Applicant’s suspension from service indefinitely without salaries by the 5th Respondent is not also known to the Imo State Public Service Rules. The allegation of fraud is a criminal act and no report to the police for the investigation of the criminal act was made against him by the Respondents. Also, the PMB, including all the Respondents, have no competence to delve into any allegation of criminal acts against him without trial and conviction by a court of competent jurisdiction. He was never charged to court nor convicted of any criminal offence by a court of competent jurisdiction. While he was the Director of Accounts at the Ministry of Agricultural and Natural Resources, he did not commit any fraud either personally or in conjunction with any person or persons and did not sign any fraudulent cheque or cheques as alleged in the query. It will therefore be in the interest of justice that the proceedings and decisions of the Defendants leading to the letter of suspension as directed by the 5th Defendant be quashed. The Applicant averred further that after the Respondents had been served with his pre-action notice, the 2nd respondent wrote a letter dated 14/12/2015 to him directing him to reply to terms of Reference. His Counsel, J.C. Uwazuruonye Esq., informed him that the said letter was intended to render his intended action nugatory. Thus, his counsel advised him not to reply to any of the terms of reference in the Defendants said letter. In his written address in support of the application, learned counsel to the applicant formulated one issue for determination, as follows: Whether the Claimant through his affidavit and documents in support of his application made out a case for the grant of order of certiorari as prayed. In commencing his argument, counsel cited the case of STATE vs LAWAL (2013) 7 NWLR (Pt. 1354) 565 at 592 – 593, where the Supreme Court held that an order of certiorari may be granted on the existence of any of the following conditions: Lack of jurisdiction, a breach of rules of natural justice; an error of law of the face of the records; and a decision obtained by fraud or collusion. Counsel stated that in the extant case, the Claimant based his application on two grounds namely: lack of jurisdiction and a breach of rules of natural justice, and that paragraphs 12,13,14,15,16,18 and 26 of the supporting affidavit clearly show that the disciplinary proceedings against the Claimant was patently initiated by the 4th Defendant and the punishment meted by the 5th Defendants who under the Imo State Public Service Rules have no roles or even the locus standi to initiate and punish or direct the punishment of the Claimant. Counsel referred to the relevant Imo State Public Service Rules 04302 – 04306 on the Disciplinary Procedure. In particular, counsel drew the court’s attention to Rule 04302 which reads as follows: “As soon as a superior officer becomes dissatisfied with the behaviour of any officer subordinate to him, it shall be his duty so to inform the officer in writing giving details of unsatisfactory behaviour and to call upon him to submit within a specific time such written representation as he may wish to make to exculpate himself from disciplinary action. After considering such written representations as the officer may make within the specified time the superior officer shall decide whether: a. The officer has exculpated himself in which case, he shall be informed in writing and no further action shall be necessary. b. The officer has not exculpated himself but is considered that he should not be punished in which case an appropriate formal letter of advice shall be issued to him and he be required to acknowledge its receipt in writing, or c. The officer has not exculpated himself and deserves some punishment in which case Rule 04304 shall apply. Furthermore, counsel submitted that under the Imo State Public Service Rules of 2001, the office of the Secretary to the Government of Imo State and or the Governor of Imo State have no role or duty to play in the disciplinary control or procedure of the Claimant or any employee of the Imo State Civil Service Commission. Thus, it is counsel’s submission that purported letter or Query of the 4th Defendant to the Claimant and his subsequent suspension were void done in excess of powers or jurisdiction of both the Secretary to the Imo State Government and the Governor of Imo State. Again, counsel argued that a person aggrieved by the decision or order of an inferior Court or Tribunal can apply for an order of certiorari to issue once grounds for bringing an application for the order exists, even though he has a right of appeal against the order or decision. See STATE vs. LAWAL (Supra) and the cases of NWAOBOSHI vs. MILITARY ADMINISTRATOR OF DELTA STATE (2003) 11 NWLR (pt 831) 305 and ODUWOLE vs. FAMAKINWA (1990) 4 NWLR (Pt. 143) 239. It is the argument of counsel that the Claimant’s depositions in paragraph 21, 22 and 23 of his affidavit in support of this application clearly indicate a breach of fair hearing to the Claimant contrary to Section 36 of the 1999 Constitution of Nigeria (as amended) and a breach of natural justice which constitute a ground for quashing the proceedings and suspension order of the Claimant. See OPAYEMI vs. THE STATE (1985) 2 NWLR (Pt. 5) 101. Similarly, counsel contended that the Claimant was unable to place the records of proceedings and decision of the defendants before the court, because the defendants failed to avail the Claimant of the records and the decision in spite of his applying for same in compliance with Order 22 Rule 5 (2) of the National Industrial Court Rules of 2007. Counsel further submitted that the failure of the Defendants to avail the Claimant of the copies of the record of proceedings and decision leading to his suspension constitute also a breach of his right to be heard or present his case before a court of competent jurisdiction. See OPAYEMI vs. STATE (supra). Counsel argued that the Defendants have a duty to present the General Manager/Chief Executive Officer and the Accounting Officer of the Agricultural Loan Board, to admit or deny the statement of the Claimant that they are in custody of the cheque booklets, and that what the claimant did was to only counter-sign cheques. It is counsel’s further argument that the Defendants’ failure to do so and suspension of the Claimant from duty without pay; amounts to a breach of the right to fair trial which renders the entire proceedings a nullity. Counsel referred to the case of IWUOHA vs. OKOROIKE (1996) 2 NWLR (Pt. 429) 231, where it was held that the consequence of a breach of the rule of natural justice or fair hearing is that the proceedings in the case are null and void. Claimant’s counsel also referred to these cases: 1. SALU vs. EGEIGBON (1995) 6 NWLR (Pt. 348) 23 2. ADIGUN vs. A.G. OYO STATE (1987) 1 NWLR (Pt. 53) 678. 3. MOHAMMED vs. KANO N.A. (1968) 1 All NLR 424 at 426. It is counsel’s submission that the 5th Defendant acted without authority in directing the suspension of the Claimant/Applicant without salary, in violation of Rule 04405 of the Imo State Public Service Rules which provides as follows: “Suspension should not be used as a synonym for interdiction. IT shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in public interest that he should forthwith be prohibited from carrying on his duties. Pending investigation into the misconduct, the Imo State Civil service Commission or the Permanent Secretary/Head of Extra Ministerial Department (if within his delegated powers) shall forthwith suspend him from exercise of the powers and functions of his office and from enjoyment of his salary―. Counsel submitted that this violation of the above-stated Rule makes the Claimant’s purported suspension void ab initio, and is a potent ground to quash both the proceedings leading to the suspension including the suspension of the Claimant/ Applicant. Similarly, counsel contended further that the powers of a State Governor under Section 208 (1) of the 1999 Constitution (as amended) do not relate to the case of the Claimant/Applicant who was suspended based on an alleged fraud committed while a Director in the Ministry of Agriculture and Natural Resources and not a Permanent Secretary of which disciplinary procedure was initiated, contrary to the Imo State Public Service Rules. Also, counsel is of the view that the law is that suspension from office means temporarily keeping a person from performing a function, occupying an office, holding a job or exercising a right or privilege; a complete act in itself with a definite beginning and affecting the right of an individual or person or persons and is liable to be challenged by any person affected by the act. See FEDERAL POLY EDE vs. OYEBANJI (2012) LPELR 1969. Again, counsel submitted that the supposed disciplinary procedure adopted against the Claimant/Applicant was based on criminal allegations of fraud which was neither reported to the police for investigation nor for trial and conviction in court, and was not proved beyond reasonable doubt. Similarly, counsel argued that even if the Governor has right to remove an officer under Section 208 (1) (c) of the 1999 Constitution (as amended), he has to comply with Section 36 (1) of the 1999 constitution by giving the Claimant Applicant fair hearing. It is the contention of counsel that there was no pronouncement from the 1st Defendant recommending the Imo State Civil Service Commission to suspend the Claimant/Applicant from duty without pay, and contrary to the Defendants’ letter to the Claimant directing him to make a reply in respect of the decision of Tribunal of Inquiry; no such Tribunal was set up by the Governor of Imo State under Section 04303 of the Imo State Public Service Rules. Counsel submitted that the letter of 14/12/2015 written by the 2nd Defendant was made when proceedings were anticipated by the Defendants, and cannot be considered by the Court as it offends Section 83(3) of the Evidence Act. In conclusion, counsel submitted that from the foregoing, it is clear that the acts of the Defendants are void. He urged the court to exercise its supervisory powers or jurisdiction to quash the acts of Defendants/Respondents in suspending the Claimant/ Applicant without pay, and grant the orders sought in this application. The respondents, in opposing the application, filed a 25 paragraphs counter affidavit of CALLISTUS EKENZE. He explained that he is the person sued as the 3rd Respondent and also the person mentioned as the Chairman of the Personnel Management Board, Imo State. With this explanation, it is good to make the clarification that the deponent is a Respondent in dual capacity in this application. He is the 1st Respondent in the 1st set of Respondents being the Chairman of the PMB. He is also the Head of Service, Imo State, which is the office sued as the 3rd Respondent in this application. Mr. Callistus Ekenze, in his depositions, stated that the Applicant became the Director of Accounts Ministry of Agriculture and Natural Resources, Imo State in August 2011 and he held that position until he was appointed as a Permanent Secretary in the Imo State House of Assembly Service Commission on 27/10/2014 by the 5th Respondent. During the Applicant’s tenure as the Director of Accounts, Ministry of Agriculture and Natural Resources, he was a member of the SACLB which made him a Co-signatory to the cheques of the SACLB. Without the applicant’s signature, no withdrawals can be made from the Bank Accounts of the SACLB. A complaint was received by the 5th Respondent that the applicant was still involved in dealing with the management of the funds of the SACLB after he had been appointed a permanent secretary resulting in unlawful issuance of cheques and withdrawal of Millions of Naira from the SACLB Bank Account. Consequently, the 5th Respondent, through the office of the Secretary to the Imo State Government, issued a query dated 28/5/2015 requesting the Applicant to explain his role in respect of the management of the SACLB funds. The deponent averred that the 5th Respondent, who has the constitutional Powers of appointment, discipline and removal over Permanent Secretaries, is competent to issue the query to the Applicant. The 5th Defendant, in the exercise of his Statutory Powers of appointment, discipline and removal over Permanent Secretaries including the Applicant, directed the suspension of the Applicant from office as a Permanent Secretary pending further investigations and actions. The same complaint of misconduct against the Applicant was received by the Imo State Civil Service Commission, the 6th Respondent. Upon receipt of the complaint of misconduct against the Applicant, the 6th Respondent set up a PMB to investigate the allegations made against the Applicant. The deponent said he was the chairman of the PMB while Eddy Igharo was the Secretary. The members of the PMB are the persons sued as the 1st set of Respondents in this application. During the proceeding of the PMB, the Applicant was invited, he appeared several times before the PMB and he also made written representations, oral representations and submitted documents to the PMB in his defence. The PMB also invited and received representations from other persons who were concerned with the management of the SACLB funds. Upon the conclusion of its Sittings and deliberations and after considering all the documents and submissions presented and made by the Applicant, the PMB issued its Report dated 24/7/2015 in which, the PMB made findings of several acts of misconduct against the Applicant and it recommended that the applicant be retired from Service. By a letter dated 14/12/2015, the 6th Respondent requested the Applicant to respond to the findings and recommendations made against him by the PMB but the Applicant has refused to do so till date. The right of the Applicant to fair hearing was not breached neither did the PMB try the Applicant of any Criminal offence but only investigated acts of misconduct alleged against him in the management of the SACLB funds. At the end of the investigation, the PMB found that the actions of the applicant in the management of the SACLB Funds constitute willful acts or omissions, negligence and failure to keep records in contravention of Rule 04401 of the Imo State Public Service Rules 2001 which rendered him liable to disciplinary measures. The deponent further stated that the 1st set of Respondents and the 6th Respondent were joined as parties in this suit on 16/6/2016 at a time the suit was already statue barred without according them the opportunity of being heard before the order of Joinder was made. The deponent was informed by their solicitor, Chief E. O. Onyema, that the 5th Respondent has both constitutional and statutory powers to query and suspend the Applicant who is a Permanent Secretary appointed by him. Also that the 6th Respondent has powers under the law and under the Imo State Public Service Rules, 2001 to cause investigations to be made in respect of any representations made to it that the Applicant, a Civil Servant, is involved in acts of misconduct. The deponent contended in conclusion that the Applicant has not disclosed any cause of action against the Respondents and that the suit against the 1st set of Respondents and the 6th Respondent is statute barred. In his written address in support of the counter affidavit, learned counsel to the respondents adopted 2 issues for determination in this application, namely: 1. Whether the Applicant has established the allegation of lack of Jurisdiction and breach of the rules of natural Justice upon which this application for Certiorari is based. 2. Whether the Applicant is entitled to the grant of the reliefs sought in this suit. On the first issue, counsel argued that in order to properly determine whether the grounds relied upon by the Applicant in this application exist, the court needs to consider the following undisputed facts garnered from the affidavits of the parties: a. That the Applicant was appointed a Permanent Secretary in the Imo State House of Assembly Service Commission by the 5th Defendant on 27/10/2014 in the exercise of the constitutional powers vested in the Governor by Section 208(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). b. That following representations made to the Governor that the Applicant, a Permanent Secretary appointed by the Governor, was involved in acts of misconduct in the management of the funds of the Imo State Supervised Agricultural Credit Loans Board even after the Applicant had been appointed a permanent secretary, the Governor issued a Query upon the Applicant to explain his role in the alleged acts of misconduct. c. That the Applicant duly responded to the said Query in writing in which document the Applicant offered his defence to the allegations of misconduct made against him, and the 6th Defendant; in the exercise of her disciplinary powers under the Civil Service Rules, Constituted a Personnel Management Board (subsequently PMB) to investigate the allegations made against the Applicant. d. The PMB duly invited the Applicant to appear before it to state his own case in defence of the allegations, and he appeared submitted documents, and made oral and written representations in his defence. After finding the applicant’s answer to the Query unsatisfactory, the 5th Defendant; directed that the applicant be suspended from office as a Permanent Secretary. Therefore, counsel contended that from these above-stated facts the Respondents did not act in excess of jurisdiction or in breach of the rules of natural justice in relation to the Applicant. It is the further contention of counsel that Section 208(1) of the 1999 Constitution (as amended) provides the Governor of the State with power to appoint and remove any person as a Permanent Secretary. Again, counsel referred to section 11(1) of the Interpretation Act that provides that where an enactment confers a power to appoint a person either to an office or to exercise any function, that the power includes the power to remove or suspend him, and also to reappoint or reinstate him. Furthermore, counsel submitted that by the provisions of Rule 01001 of the Imo State Public Service Rules 2001, where an appointment derives from the Constitution the Public Service Rules apply only to the extent that the Rules are not inconsistent with the provisions of the Constitution. Thus, it is the argument of counsel that the 5th Defendant as the Governor of Imo State has both Constitutional and statutory powers to appoint, suspend, remove or reinstate any person as a Permanent Secretary in the state; and these powers cannot be removed or impaired in any manner by the provisions of the Civil Service Rules. Therefore, the 5th Defendant therefore did not act in excess of his powers when he directed the suspension of the Applicant from office as a Permanent Secretary. Again, counsel contended that the Applicant’s answer to the query could not have been found satisfactory by any reasonable person, and while the Applicant tried to deny involvement in the improper issuance of the cheques that led to the withdrawal of millions of naira from the accounts of the SACLB, the undisputed fact as disclosed in the Affidavits, was that the said funds were withdrawn from the Accounts of the SACLB between December 2014 – January 2015 with cheques counter-signed by the Applicant. Counsel referred to the case of IMONIKHE vs. UNITY BANK PLC (2011) 12 NWLR (Pt. 1262) 624, where the Supreme Court held that accusing an employee of misconduct; by way of a query, allowing the employee to answer the query and the employee answers it before a decision is taken satisfies the requirements of fair hearing or natural justice. See also DUKE vs. GOVERNMENT OF CROSS RIVER STATE (2013) 222 LRCN (Pt. 1) 90. It is counsel’s submission therefore that the Applicant was given a fair hearing before he was suspended from office as a Permanent Secretary. Similarly, counsel contended that the argument of the Applicant’s Counsel that the Applicant should first have been reported to the Police and prosecuted before disciplinary proceedings can be taken against him is misconceived; because the Applicant was not suspended for the commission of a Criminal Offence. Counsel submitted further that the Claimant was issued with a Query for an act of misconduct, for which the person who appointed him as a Permanent Secretary can deal with without recourse to the police or the Courts for prosecution. The case of EZE vs. SPRING BANK PLC (2011) 18 NWLR (Pt. 1278) 113, was relied on by counsel for his submission that the law is now settled that an employer can deal with acts of misconduct by his employee without having to wait for such employee to be prosecuted first. Counsel urged the Court to hold that the actions of the Respondents in relation to the Applicant were not in excess of jurisdiction or in breach of the rules of natural justice. Again, counsel is of the opinion that with Rule 04405 of the Public Service Rules providing inter alia that pending investigation into the misconduct, the Imo State Civil Service Commission may suspend an officer him from the exercise of the powers and functions of his office and enjoyment of his salary. Similarly, counsel submitted that Rule 04305 of the Imo State Public Service Rules 2001 does not specify the person who may represent to the commission that an officer has been guilty of misconduct, it suffices that the Commission received such representation from any person or body. Counsel urged the Court to resolve this first issue in the negative and hold that the Applicant has not established that the Respondents acted in excess of Jurisdiction or in breach of the rules of natural justice in the circumstances of this case. Regarding the second issue, counsel submitted that in order to be entitled to the reliefs claimed in this suit, the Applicant must establish the grounds upon which an order of certiorari can be granted, and the grounds the Applicant relied on have not been established. It is counsel’s submission therefore that the Applicant is not entitled to the order of Certiorari which is the Principal relief sought in this application. Consequently, it is counsel’s view that the other ancillary reliefs predicated upon the said order of Certiorari cannot be granted, and the Court cannot order the immediate reinstatement of an employee against whom disciplinary proceedings are pending, neither can the Court order an injunction to restrain an employer from taking any other disciplinary action, for the reason that any such order will only amount to a judicial license granting immunity to the employee against the employer in respect of any misconduct. More so, counsel argued that as averred by the first set of Respondents and the 6th Respondent on record have also indicated in paragraph 23 of the Counter affidavit that they were joined in this Suit on 16/6/2016 without any opportunity given to them to be heard before the order of Joinder was made; such joining amounts to a denial of fair hearing which robbed the first set of Respondents and the 6th Respondent of the opportunity of canvassing the issue of whether they could be validly joined in a suit which they alleged was already statute -barred at the time the order for their joinder was made, being public officers under the Public officers Protection Law. Further, counsel submitted that on this ground that the applicant is not even entitled to any reliefs against the first set of respondents and the 6th respondent, whose joinder in this suit is vitiated by the fact that the order was made in breach of the rules of fair hearing. At this juncture, counsel relied on the cases of SALU vs. EGEIBON (1994) 6 NWLR (Pt. 348) 23 at 49 and SKEN CONSULTING LTD vs. UKEY (1981) 1 SC 6, and submitted that an order made against a person who was not given opportunity to be heard is null and void. Similarly, counsel argued that the facts disclosed in this application show that the 2nd, 3rd and 4th Respondents did not do anything that gives the applicant a cause of action to justify their being sued in this suit, especially as the Report of the PMB has not even been implemented against the Applicant by any of the Respondents to give the Applicant any basis for complaint. It is submitted by counsel that the Applicant does not have a cause of action to entitle him to any relief against the Respondents. In conclusion, counsel urged the Court to hold that the Applicant has not proved his case as required by law and therefore not entitled to judgment. He urged the court to dismiss this suit with costs. The applicant filed a further affidavit of 30 paragraphs on 24th April 2017. The further affidavit is mostly a repeat of the facts the Applicant has already deposed in his affidavit in support of the application. I will examine only the facts not contained in the initial affidavit. The Applicant maintained that the 5th Respondent has no competence or power to discipline and remove him in respect of a wrong doing arising from his position as Director in the Ministry of Agriculture and Natural Resources and even as a Permanent Secretary. Nobody made any complaint of any kind to the 6th Respondent in respect of the alleged misconduct. If there was such a person, the Applicant said he deserve to know the person or persons. He was not told the person or persons who made complaint against him when the query was issued to him on 28/5/2015. He was tried and ‘crucified’ on the basis of an imaginary accuser. He appeared before the PMB two times and submitted his reply to the query which he adopted as his defence. He did not know of other persons who were invited by the PMB. At the time of his suspension, the members of the 6th Respondent were on suspension. Accordingly, the 6th Respondent was not in existence to discuss issues affecting civil servant in Imo state. The Permanent Secretary, Mr. lheka, was the Secretary and Adviser to the 6th Respondent but not a member of the 6th Respondent. He had no powers to perform the functions of the 6th Respondent. The Imo State Government decided to recall the members of the 6th Respondent when the Applicant wrote to the 6th Respondent to complain about his suspension on 19/11/2015. The 6th Respondent does not take directives from the 5th Respondent. The report of the panel the PMB was issued after the filing of this suit on 21/12/2015. In the written address accompanying the Claimant/Applicant’s further affidavit, learned counsel submitted that contrary to the view of the Defendants/respondents that they acted within their powers and jurisdiction and that they did not breach the rules of natural justice against the Claimant/Applicant; paragraph 12 of the counter-affidavit, contradicts the purported report of the PMB as contained in paragraph 17 of the counter-affidavit. Similarly, counsel argued that from the above it is evident that the 6th Defendant/Respondent did not constitute the 1st Respondents, it was the 5th Defendant/Respondent that constituted the 1st Defendant/Respondent contrary to the Public Service Rules. Furthermore, counsel is of the opinion that paragraph 21 of the counter-affidavit, where the respondents averred that the PMB only investigated acts of misconduct alleged against the applicant; is inconsistent with the heading of the PMB’s report that indicates that the PMB was set up to investigate fraudulent activities in the Imo State Supervised Agricultural Credit Loans Board. Thus, counsel contended that the 1st Respondent did not severe in their purported investigation, the misconducts from fraudulent acts to enable the Claimant/Applicant know what he was tried or investigated upon. It is counsel’s submission that even in the PMB report, no persons were shown as accusers of the Claimant/Applicant and the purported offences allegedly committed by the Claimant/Applicant are nebulous, unclear and therefore a breach of the constitutional right of the Claimant/Applicant to fair hearing/trial, to try and convict him on allegations that have no accusers. See the cases of OLANIYAN vs. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt. 9) 559 and P.H.M.B vs. EJIHAGHA (2000) 1 NWLR (Pt. 677) 155. On the same note, counsel submitted that the court has the duty to scrutinize the validity of instruments, laws, acts and decisions and can declare them void not owing to the fact they are unconstitutional in terms of Section 36 of the constitution, but for the reason that they offend the principles of rules of national justice. See BAKARE vs. L.S.C.S.C (1992) 8 NWLR (Pt. 262) 641. Also, counsel submitted that the Personal Management Board and Tribunal of Inquiry are not the same, and while the Personal Management Board is set up by the Imo State Civil Service Commission, the Tribunal of Inquiry is constituted up by the Governor of Imo state, with the PMB operating within the domain of the Imo state Public Service Rules 2001. Similarly, counsel is of the opinion that in order to show that the 5th Defendant has no disciplinary control over the Claimant/Applicant even under the Tribunal of Inquiry Act, the recommendation of the Tribunal though constituted by the Governor is sent to the Imo state Civil Service Commission which will call the Claimant/Applicant to reply to their findings or recommendation before it takes any decision. This in counsel’s view clearly shows that the responsibility to discipline the Claimant/Applicant rests squarely on the door step of the 6th Defendant; and the 4th and 5th Defendants usurped the functions or duties of the 6th Defendant. Their resultant acts of suspension without pay are ultra vires their powers and therefore void. On the strength of the foregoing, Counsel urged the court to dismiss the speculative defence of the Respondents and grant the reliefs of the Claimant/ Applicant as prayed in the application. On 25th April 2017, this court granted leave to the respondents to file further counter affidavit to address new issues raised in the applicant’s further affidavit. Pursuant to that leave, the respondents filed a further counter affidavit of 11 paragraphs deposed by A. E. IHEKA, Permanent Secretary in the Imo State Civil Service Commission. It is deposed that the Claimant, being a member of SACLB, was fully involved in all decision making relating to loan approvals for beneficiaries and disbursement of such loans. The beneficiaries of the loans are not known to the 4th and 5th Respondents. The Report of the PMB is genuine and not concocted and was not made up during the pendency of this Suit. The applicant never requested for a copy of the Report which the PMB submitted to the Imo State Civil Service Commission but his Solicitor, in the letter dated 19/11/2015, only requested for “the Record of Proceedings and the decision of the Panel in which our client was tried of fraud and pronounced guilty―. The Applicant was notified of the report of the PMB by the 6th Respondent’s letter dated 14/12/2015 but the applicant did not demand for the Report. The claimant stated in his Solicitor’s letter of 18/12/2015 that he will not respond to the report and he rather chose to go to Court. The Civil Service Commission is only obliged to let the applicant know the case against him and offer him opportunity of making his defence which the Commission did and the applicant utilized the opportunity. It was the applicant who chose not to have anything to do with the report of the PMB. COURT’S DECISION Before I proceed to examine the issues involved in this action, let me comment on the contention of the Respondents that the suit is statute barred. In paragraph 23 and 24 (e) of the Respondents’ counter affidavit, it was averred that the 1st set of Respondents and the 6th Respondent were joined as parties in this suit on 16/6/2016 at a time the suit was already statue barred with respect to them. This issue has already been raised by the Respondents in a motion filed on 28th September 2016 and determined in my ruling of 6th February 2017 where I held that the suit against the 1st set of Respondents and the 6th Respondent is not statute barred. That ruling is still subsisting and has not been set aside by a higher court. I will therefore not revisit the issue. Having examined the facts of the application and the submissions of the counsels to the parties in their respective and various written addresses, I formulate two issues for determination in this application. The issues are: 1. Whether the applicant has made out a case for the grant of an order of certiorari. 2. Whether the applicant is entitled to any of the reliefs he sought. ISSUE 1: From the facts, it is not in dispute that the Claimant is a civil servant in the Imo State Civil Service. He was a Director of Accounts in the Ministry of Agriculture and Natural Resources of the State. In that capacity, he was also a member of the SACLB. On 27/10/2014, he was appointed a Permanent Secretary in the Imo State House of Assembly Service Commission. He was in that office when he was issued a query in respect of alleged illegal issuance of cheques and withdrawal of various sums of money from the Account of SACLB. As a result, he was invited to appear before the PMB which he did and he was subsequently suspended from duty indefinitely without salaries vide letter dated 23/9/2015. The essence of the application is disclosed in paragraph 36 of the applicant’s affidavit in support of the application where the applicant averred that the interest of injustice require that the proceedings and decisions of the Defendants leading to the letter of suspension issued on the direction of the 5th Defendant be quashed. Hence, the Applicant sought in relief 1 an order of court quashing the proceedings and decisions leading to the suspension. Certiorari is one of the prerogative orders of the court. Its function primarily is to ensure that inferior courts or anybody entrusted with the performance of judicial or quasi-judicial functions keep within the limits of the jurisdiction conferred upon them by the statute which created them. The law is that whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially or in accordance with a laid down procedure but acted in excess of their legal authority or competence, certiorari will be ordered to quash the offending act or decision of such body or persons. The court will usually interfere by way of order of certiorari where the decision of the inferior court or body suffers any of these defects- decisions made without jurisdiction or in excess of jurisdiction; breach of rules of natural justice; error of law on the face of the records; or when the decision was obtained by fraud or collusion. See STATE vs. LAWAL (2013) 7 NWLR (Pt. 1354) 565 at 592 – 593; AWE vs. G.M., OSUN STATE WATER CORPORATION (2002) FWLR (Pt. 91) 1651 at 1661; EKPO vs. CALABA LOCAL GOVERNMENT (1993) 3 NWLR (Pt. 281) 324 at 347; UNIVERSITY OF UYO vs. ESSEL (2006) All FWLR (Pt. 315) 80 at 101. In an application for the order of the writ of certiorari to bring the proceedings of an inferior court or an administrative body before the High Court to be quashed, it is the duty of the Applicant to provide evidence to establish the ground of the application and also produce before the court the entire proceedings complained of in the application. In this case, the grounds of the application or the reasons given by the Applicant in his affidavit evidence for seeking an order of court quashing the proceedings and decisions leading to his suspension are that – i. The 5th Respondent who directed his suspension from duty without pay is not his employer and has no competence to direct his punishment; ii. He was not given fair hearing by the PMB. The proceedings leading to the applicant’s suspension, as narrated by him, are in these order. He was first issued a query by the 4th Respondent, the Secretary to Imo State Government, on 2/6/2015. He was directed in the query to respond to the allegation which he did by submitting his response to the 4th respondent. On 24/6/2015 and on 26/6/2015, he received separate invitations written by E. I. Igharo, Permanent Secretary in the office of the Secretary to the State Government, to appear before the PMB. The Applicant did appear before the PMB, whose chairman and members are the 1st set of Respondents, on 29/6/2015 and he presented his defence. On 2/10/2015 he received a letter dated 23/9/2015 signed by the 2nd Respondent suspending him from service indefinitely without pay on the directions of the 5th Respondent. From the Applicant’s case, the process culminating in his suspension was initiated by the query of 2/6/2015. Having also examined the depositions of the Respondents in the counter affidavit, it is clear to me that the query was issued in the same process which resulted in the Applicant’s suspension. The Respondents contended that the query and suspension was directed by the 5th Respondent who has the constitutional powers of appointment, discipline and removal over Permanent Secretaries. The 5th Defendant, in the exercise of his powers directed the suspension of the Applicant from office as a Permanent Secretary pending further investigations into the allegations. Going by these averments of the Respondents, it would seem that the query issued to the Applicant and his suspension by the 5th defendant was done in the applicant’s capacity of a permanent secretary. That is why the Respondents contend that the 5th Defendant has the competence to issue the query and suspend the Applicant. The position of the Respondents, as submitted by their counsel, is supported in Section 208 of the 1999 Constitution (as amended). Under that section, the power of appointment, removal or discipline of permanent sectaries, is conferred on the State Governor. The Applicant however alleged that from the query up to his suspension was done to him in his status as a civil servant and in that capacity, he can only be disciplined by the 6th Respondent, the Civil Service Commission, and not by the 5th Respondent. These different contentions of the parties raises the issue as to what capacity or status was the Applicant issued the query and suspension. Was the Applicant disciplined in his status as a civil servant or in his capacity as a permanent secretary? To answer this question, I will examine the communications in the disciplinary process. The query, exhibited by the applicant as Exhibit E, was dated 28th May 2015. It was written and signed by the 4th Respondent. The allegation against the Applicant was that he was involved “in illegal issuance of cheques and withdrawal of various sums of money running into millions of Naira from the account of the Supervised Agricultural Credit Loans Board, Owerri when you were the Director of Accounts of the Ministry of Agriculture and Natural Resources, Owerri…― The suspension letter is annexed to the Applicant’s affidavit as Exhibit D. It is headed GOVERNMENT OF IMO STATE OF NIGERIA CIVIL SERVICE COMMISSION and dated 23rd September 2015. It reads- “RE: SUSPENSION OF SOME OFFICIALS DUE TO FRAUD I am directed to refer to letter nos HIS/S.004/T.2/3 and GH/PL/S.190/VI/657 dated 22nd September 2015 and 21st September 2015 respectively on the above mentioned subject matter and convey His Excellency, the Executive Governor’s directive that you be suspended from service indefinitely without salaries with immediate effect. In the circumstance, you should hand over all government properties under your care to the next senior officer to you. Please accept the assurances of the Commission’s highest esteem. Signed A.E. IHEKA Permanent secretary/secretary For: chairman. The suspension letter did not mention that the Applicant was suspended by the 5th Respondent from office of permanent secretary. It clearly states in the 1st paragraph of the letter that the applicant was suspended from “service―. Service, as used in the letter, in my view, is the civil service. The query letter also indicated that the Applicant was issued the query in his capacity as a civil servant for an alleged offence he committed as a director in the civil service. Without any doubt, the disciplinary process initiated by the query and the subsequent suspension of the Applicant was in respect of his capacity as civil servant and not as an appointee of Governor as Permanent Secretary. Having been determined that the disciplinary process was conducted against the applicant in his capacity as a civil servant, the issue here is has the Claimant shown anything wrong with the process which render it capable of being quashed? The Applicant deposed to the fact that as a civil servant, it is only his employer, the Imo State Civil Service Commission that can punish him. The 5th Respondent who directed the query and suspension from service is not his employer and has no competence to direct his punishment. The CSC is a creation of the Constitution in Section 197 (1) of the 1999 Constitution (as amended) which provides thus: “There shall be established for each State of the Federation the following bodies, namely- (a) State Civil Service Commission (b) ———————- (c) ———————–.― It is also constitutionally acknowledged that the employer of civil servants in a state is the Civil Service Commission established for that State by the Constitution. The CSC also has the power to discipline the civil servants employed by it. Paragraph 2 (1) and (2) of part II of the Third Schedule 1999 Constitution provide: 2. Civil Service Commission of a State (1)The Commission shall have power, without prejudice to the powers vested in the Governor and the State Judicial Service Commission, to- (a) appoint persons to offices in the State civil service; and (b) dismiss and exercise disciplinary control over persons holding such offices. (2)The Commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of heads of divisions of Ministries or of departments of the Government of the State as may from time to time be designated by an order made by the Governor except after consultation with the head of the civil service of the State. Then, Section 202 of the 1999 Constitution provides as follows: “In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person.” The combined effect of the above provisions of the Constitution is that the matter of discipline of the applicant in the employment of the Imo State Civil services Commission is the responsibility of the Imo State Civil Service Commission and this responsibility is not subject to the direction and control of any authority or person. The Imo State Public Service Rules 2001 also made provisions which have settled the issue as to who can exercise disciplinary control over civil servants in Imo State. In the PSR, the power to discipline officers is conferred on the CSC or as may be delegated by it. Rule 04305 of the PSR provide thus: If it is represented to the Imo State Civil Service Commission that an officer has been guilty of misconduct…. it may cause an investigation to be made into the matter in such manner as it considers proper and the officer shall be entitled to know the whole case against him and shall have adequate opportunity of making his defence With respect to the particular subject disciplinary action taken against the applicant, Rule 04405 provide for who can order suspension. It provides: “… Pending investigation into the misconduct, the Imo State Civil service Commission or the Permanent Secretary/Head of Extra Ministerial Department (if within his delegated powers) shall forthwith suspend him from exercise of the powers and functions of his office and from enjoyment of his salary”. From the above provisions of the Constitution and the PSR of Imo State, it is clear that the authority with power to discipline civil servants in the Imo State Civil Service is the CSC. The query issued to the Applicant was issued by the Secretary to the Government of Imo State, the 4th Respondent in this suit on the direction of the 5th Respondent. That office or person is not the CSC of Imo State. Again, from the content of the suspension letter, it is obvious that the decision to suspend the Applicant was taken and directed by the 5th Respondent. The 2nd Respondent, that is the permanent secretary of the CSC, only communicated the suspension to the Applicant. There is no gainsaying the facts that the suspension of the Claimant from service was done by the 5th Respondent and not the CSC. The 5th Respondent is obviously not the CSC of Imo State. Both the query and the suspension were handed down on the applicant by persons who have no power or authority to do so. It should be noted that there is a demarcation between the Applicant’s status as civil servant and his appointment as a Permanent Secretary. By the provision of Section 208 (5) of the 1999 Constitution, the appointment of the Head of Service of the State and Permanent Secretaries, which are appointments required to be made from the public service of the state, are not at the pleasure of the Governor. These appointments do not cease when the Governor ceases to hold office but the officers are entitled to return to the Civil Service when the Governor ceases to hold office. It thus implies that if for whatever reason the Applicant is removed from office as Permanent Secretary by the 5th Respondent, he still remains a civil servant until he retires or duly disengages from service. Therefore, the disciplinary powers which the Governor wields over the office of Permanent Secretary do not extend to the status of the Permanent Secretary as a civil servant. Although Section 208 (1) gave power to the Governor to appoint persons to hold or act in the offices to which the section applies and to remove persons so appointed from any such office, the 5th Respondent cannot, while purporting to exercise the disciplinary power over his appointee, extend the power into the civil servant status of the appointee. In other words, Section 208 (1) of the Constitution did not grant power to the 5th Respondent to suspend civil servants from service. The Claimant also alleged that he was not given fair hearing by the PMB. This is one of the grounds for seeking to have the proceeding quashed. In his affidavit, the Applicant said he was invited to appear before the PMB, whose members are the 1st set of Respondents, on 29/6/2015 and to appear with some documents listed in the invitation letters. He appeared before the PMB and presented his defence to the PMB and he relied also on his answer to the query which he submitted earlier to the Secretary to the Imo State Government. Although he mentioned the General Manager/Chief Executive Officer of the SACLB and the Accounting Officer as the persons who were in custody of the cheque booklets of the SACLB in his answer to the query, the PMB did not present these persons mentioned by him before him to confront them with respect to the issue of the custody and issuance of cheques. The PMB also ignored schedule of payments given to him by the Accounting Officer which he submitted to the PMB. The applicant also said he demanded copies of the record of proceedings and the decisions of the PMB but the Respondents refused to give him copy of the record. In the Applicant’s further affidavit, he also said nobody made any complaint of any kind to the 6th Respondent in respect of the alleged misconduct as he was told the person. The Applicant also said he did not know of other persons who were invited by the PMB On the other hand, it was deposed in the Respondents counter affidavit that the complaint of misconduct by the Applicant was received by the 6th respondent who set up the PMB to investigate the allegations made against the Applicant. During the proceeding of the PMB, the Applicant was invited, he appeared several times before the PMB and he also made written, oral and documentary representations to the PMB in his defence. The PMB also invited and received representations from other persons who were concerned with the management of the SACLB funds. Upon the conclusion of its proceedings and after considering all the documents and submissions presented by the Applicant, the PMB issued its Report dated 24/7/2015 in which, the PMB made findings of several acts of misconduct against the Applicant and it recommended that the Applicant be retired from Service. The Respondents stated also that the right of the Applicant to fair hearing was not breached by the PMB. The Respondent contended that in their further counter affidavit that the 6th Respondent is only obligated to inform the Applicant of the case against him and offer him opportunity of making his defence which the 6th Respondent did and the Applicant utilized the opportunity. According to Rule 04305 of the PSR, if it is represented to the Imo State Civil Service Commission that an officer has been guilty of misconduct, it may cause an investigation to be made into the allegation and the officer shall be informed of the allegation and given opportunity to defend the allegation. This court has made it abundantly clear in this judgment that the body with power of discipline over civil servants in Imo State is the CSC. The effect of this provision is that the CSC is empowered to set up an investigation into an allegation of misconduct made against civil servants and during the investigation, the civil servant shall be given fair hearing. The Respondents have said that it was in exercise of the powers of the CSC that it set up the PMB to investigate the allegations made against the Applicant. In his further affidavit, the applicant stated that at the time of his suspension, the members of the 6th respondent were on suspension and the 6th respondent was not in existence to discuss issues affecting civil servant in Imo state. He further averred in paragraphs 24 and 25 of the further affidavit that the responsibility to set up PMB is that of the 6th respondent and as such, it was unlawful for the 5th Respondent to constitute the PMB. This averment of the Applicant indicates that the PMB was not set up by the 6th Respondent but by the 5th respondent. In resolving the issue whether the Applicant was given fair hearing by the PMB or not, the first pertinent question to resolve is who constituted or set up the PMB to investigate the allegations against the applicant? The applicant did not exhibit the report of the PMB to his application. Of course, his case is that he was not given a copy. Although the respondents said in their further counter affidavit that it was the Applicant who did not request for the report, I do not think it matters whether the Applicant had the report at the time or not. The Respondents have now exhibited a copy of the report to their counter affidavit. It is Exhibit HOS.3. The front page of the report shows that the PMB was “constituted by Government―. The 1st paragraph of page 1 of the report states: “By letter No. SGI/S.0440/VOL.VI/XX dated 2nd June 2015, His Excellency Owelle Anayo Rochas Okorocha OON approved the constitution of the Personnel Management Board…― At the last page of the report, the members of the PMB signed the report and stated: “We are grateful to His Excellency, the Executive Governor of Imo State, Owelle Anayo Rochas Okorocha (OON) for the opportunity given to us to serve―. I took the effort to set out these contents of the report in order to discover who constituted and appointed the members of the PMB. Without saying anymore, it is obvious that the PMB was constituted by the 5th Respondent. There was no mention of the CSC at all in the report. I find that the PMB was set up by the 5th Respondent and not by the 6th Respondent. The implication is that the investigation conducted by the PMB was not an investigation of the 6th respondent. In view of this, the investigation and report of the PMB cannot be used for any purpose with respect to the employment of the applicant in the civil service. The report was made to the 5th respondent which he can use for whatever purpose he constituted the PMB but definitely not to affect the employment of the applicant in the civil service of Imo State. The constitution and proceeding of the PMB was instituted contrary to the PSR of Imo State. Now, to the Applicant’s allegation of lack of fair hearing before the PMB, it is my view that the issue is no longer of any moment. Since the PMB proceeding was not initiated by the applicant’s employer, the 6th Respondent, it was not a disciplinary investigation by the 6th Respondent as envisaged in Rule 04305 of the Imo State PSR. Consequently, the proceeding and the report have no effect with respect to the applicant’s employment under the 6th Respondent. Having become clear that the report in Exhibit HOS.3 did not emanate from the 6th Respondent, it is also clear to me that the 6th Respondent had not acted on the allegation made against the applicant for which he was suspended from service by the 5th Respondent. In the result of all the foregoing, I find that all the processes and proceedings resulting to the suspension of the applicant from service were taken by the 5th Respondent who had no power or authority or the competence to do so. ISSUE 2: In relief (a) of the application, the Applicant sought an order quashing the proceedings including the decisions of the Respondents leading to his suspension from service. It is my finding in issue one of this judgment that the entire process in the disciplinary action taken against the Applicant, right from the query up to the suspension, were done by a person without authority, jurisdiction or competence to discipline the Applicant as a civil servant. The 5th Respondent took over the responsibility of the 6th Respondent and performed the function of discipline of a civil servant which function is ultra vires his office. The entire process resulting to the suspension of the Applicant from service is therefore invalid and void. The Applicant succeeds in the prayer sought in relief (a). The entire process and proceedings including the suspension of the Applicant from service are hereby quashed. In relief (b), the Applicant sought an order reinstating him to his office as Permanent Secretary and to pay him his accumulated arrears of salaries and entitlements. As I have stated earlier, it is the 5th Respondent who can make the appointment into the office of permanent secretary and to remove the person from the office or discipline the person with respect to that office. These are within the prerogative of the 5th Respondent. To make the order sought by the Applicant in this relief is to insist on the 5th Respondent retaining the Claimant as a permanent secretary. I do not think this court can do so. The basic fact is that, in view of the quashing of the letter of suspension, the Applicant is deemed not to have been suspended from service. The Applicant has been and he is still a civil servant till date. Thus, while I refuse to make the order reinstating him to the office of permanent secretary, I shall make the order that he be paid his salaries and allowances for his rank or position in the civil service calculated from the date of the unlawful suspension till the date of this judgment and until such a time as his employment is lawfully determined. I will refuse relief (c). Although the disciplinary proceeding against the Applicant has been quashed in this judgment for reason that it was not conducted by the body with competence to discipline the Applicant, I cannot make any order restraining, particularly the 6th Respondent, from subsequently taking appropriate disciplinary steps against the Applicant. My judgment is as I have given and ordered above. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge |
