IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL  DIVISION

HOLDEN AT YOLA

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D.DAMULAK

ON THE 17TH DAY OF JUNE, 2019

                                                                    SUIT NO: NICN/YL/01/2019

BETWEEN

BARRISTER SUSANA S. ELAM                                       …………………CLAIMANT

            V

1.ADAMAWA STATE JUDICIAL SERVICE COMMISSION

2.THE GOVERNOR ADAMAWA STATE

3.THE HON. ATTORNEY GENERAL AND COMMISSIONER  ………DEFENDANTS

FOR JUSTICE ADAMAWA STATE  

4.JUSTICE ISHAYA BANU (CHIEF JUDGE ADAMAWA STATE)  

5.BARRISTER MOHAMMED BABAYOLA AHMED            

 

REPRESENTATION

 J.E. Owe with N.J. Akanmodi, G.E. Akpanamasi, A.C. Obadiah,

Mfoniso Gabriel Akpanamasi, H.J. Farang, F.S. Bashir and

Muazatu Ibrahim   for the claimant.

S.L. Kyanson, DPP, MOJ. Adamawa State,  for the defendants.

 

JUDGMENT

1.     INTRODUCTION

This judgment borders on the lawfulness or otherwise of the compulsory retirement of the claimant. The claimant took out an originating summons on 7/1/2019 accompanied by documents as exhibits and a written address. The defendants were served on 16/1//2019 but only filed a counter affidavit on 5/3/2019 accompanied by exhibits and a written address.

The claimant filed a motion for amendment on 9/5/2019 to amend “Adamawa State civil Service Commission Regulation 1980”  to read “Adamawa State judicial Service Commission Regulation 1980”. The application was granted on 15/5/2019 and parties argued their case. 

The defendants’ failure to file counter affidavit within time was condoned by the court based on section 12 NICA 2006 and Order 5 Rules 1, 3 and 4(1)(a) and (2) of the Rules of Court on the condition that the defendants are to pay the fee for default of 105 days within 5 days or the counter affidavit will be deemed incompetent.

The claimant formulated 8 questions for determination all bordering on the lawfulness of the letter of query, disciplinary procedure, compulsory retirement of the claimant from service and fair hearing in view of Adamawa state judicial Service commission Regulation 1980, Sections 36(1), 199 (1)(c),200(3) and 197(1 )( c) and the 3rd schedule part 11, paragraph 5 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ,  and sought for 15 corresponding reliefs.

2.     FACTS OF THE CASE

The claimant was the Secretary of the Adamawa State Judicial Service Commission up till the 7th day of November 2018 when she was compulsorily retired from service by the 1st defendant, after issuing her a query on 3/10/2018 to which she replied on 5/10/2018.

3.     CASE OF THE  CLAIMANT

In the 25 paragraph affidavit in support deposed to by the claimant, she deposed that she was the Secretary of the Adamawa State Judicial Service Commission up till the 7th  day of November 2018 when she was unlawfully and without regard for due process compulsorily retired from service by the 1st, 3rd , 4th  and 5th Defendants. The 4th defendant issued her a query letter dated 3rd October 2018 reference No. CJ/ADS /19/ VOL.l/123. She replied the query in her letter dated 5th October 2018.  On the 7th November 2018 she received a letter signed by the 4TH defendant (the complainant in the case), compulsorily retiring her from service.

 The 1st defendant did not invite her to appear before it to defend herself of any allegation before she was compulsorily retired. The 1st defendant did not serve her with any notice of allegation of misconduct before she was compulsorily retired. No panel was constituted by the 1st defendant or by the 4th defendant to investigate any allegation of misconduct before she was compulsorily retired from service.

 The 1st defendant merely approved a recommendation which was made to it for her compulsory retirement Exhibit SSE9, without stating the Person or body who made the recommendation and without stating the reason why she was compulsorily retired.  

The 1st Defendant was not properly constituted when it purportedly approved her compulsory retirement. The 5th defendant was a second term member of the 1st Defendant and he participated in the meeting in breach of Sections 199(1)( c) and 200(3) of the Constitution of the Federal Republic of Nigeria 1999 ( as amended).

In his written address, learned counsel for the claimant argued his questions 1 and 2 together and formulated an issue thus;

Whether the compulsory retirement of the claimant by the 1st,  3rd , 4th and 5th  Defendants and all the steps taken in respect thereof pursuant to the Query letters (Exhibit SSE1) provided by the 4th defendant and served on the claimant are not all together unlawful, null and void. (Based on Questions for Determination No. 1, 2 and 3).

Counsel submitted that the compulsory retirement of the claimant is a nullity because the 4th defendant is not vested with the power to issue the Query letter and  as such, the compulsory retirement of the claimant and all the steps taken in respect thereof and arising from the Query Letter are a nullity.  Counsel placed reliance on regulations 42, 43 and 47, quoting the provisions of the said “regulations” and submitted that nowhere in the said Regulation 42, 43 and 47 is the 4th defendant vested with the power or authority to issue the said Query Letter which he issued. That the compulsory retirement of the claimant which rested on the said null and void Query Letter has no platform on which to stand and is bound to be set aside. That the 4th defendant cannot arrogate to himself power which he does not possess.  AWUSE v ODILI (2004) 8 NWLR (Pt 876) p.481.

Counsel submitted further that the Claimant is not an officer under the office of Chief Registrar and not subject to regulations 42,43 and 47 which in any case were not complied with. That the provision of Regulation 47 implies that the officer must be a staff of the High Court of which the Claimant is not. 

Counsel submitted that the Secretary of the Commission is an appointee of the Governor of the State. Paragraph 4(1) Adamawa State Judicial Commission Regulation 1980 provides-; “There shall be a Secretary to the Commission who shall be appointed by the Governor. If for any reason the 4th Defendant or other members of the Commission have any issue with the Claimant, which require that she be compulsorily retired, the best they can do is to make representation to the Governor in respect thereof. The office of the claimant is in the mould of that of a Permanent Secretary. It is submitted that the office of Secretary Judicial Service Commission is not a department in the High Court or of the Judiciary, but the administrative head of a state executive body. In respect of the Judicial Service Commission itself, the relevant provisions of the Constitution 1999 (as amended) are sections 197. That the disciplinary powers of the Commission as set in paragraph 6(c) part II of the Third Schedule are limited to members of Staff of the Judicial Service of the State and not of the Commission (which is an executive body).

Learned counsel for the claimant argued his questions 5 and 6 together and formulated an issue thus;

 whether the failure of the 1st  , 3rd , 4th  and 5th  Defendants to invite or give the claimant the opportunity of being heard to defend herself before compulsorily retiring her was not a violation of the claimant’s right to fair hearing as enshrined, preserved and guaranteed by section 36 (1) Constitution of the Federal Republic of Nigeria 1999 (as amended) (based on Questions for Determination No.5 and 6)·

Counsel submitted that the claimant was not given an opportunity to be heard. That any trial or enquiry where the right to fair hearing of the defendant is violated, or where in particular, such a person is not given even the opportunity of being heard, shall be liable to be set aside. CADBURY PLC v. ONI [2013] ALL FWLR Pt  665 p285; MPAMA v FIRST BANK PLC [2013] AL, pt 674, 129.YEMISI v. FIRS [2013] ALL FWLR pt 693, 1992 at 1999.In addition to the point that the Claimant was denied fair hearing, the 4th Defendant acted as a judge in his own cause of action. It is submitted that the outcome of an inquiry or investigation in which the complainant acted as a judge in his own cause of action is liable to be set aside.

Learned counsel for the claimant formulated his issue 4 thus;

whether the compulsory retirement of the c1aimant by the 1st ,3rd 4th  and 5th  Defendants when at all material time the 1st  Defendant was not properly constituted within the  contemplation of sections 199 © and 200 (3) of the Constitution of the Federal republic of Nigeria 1999 (as amended) was not all together unlawful, null and void.

Learned counsel submitted that the Commission (1st Defendant) was not properly constituted when it compulsorily retired the Claimant, and this rendered all the steps taken in respect of the said retirement null and void. The 5th Defendant who was present and acted as Secretary in the second session of the meeting of the Commission on the 5th November 2018 is a second term member of Commission, having served his first term. The Constitution of the Federal Republic of Nigeria 1999 (as amended) limits the membership of the Commission to only one term of 5 years, as provided for in Sections 199 (1)( c) and 200(3) reproduced.

Learned counsel for the claimant formulated his issue 5 thus;

whether the claimant is not entitled to be reinstated or restored back to her office as Secretary Adamawa state Judicial Service commission and be paid all the financial entitlements to which she was denied as a result of the compulsory retirement.

Learned counsel submitted that in consequence, the Claimant is entitled to be reinstated or restored back to her office and be paid all the financial benefits that she is entitled to but which were denied her as a result of the compulsory retirement. The claimant derives her office from the provision of Section 197(1)( c)  of the Constitution of the Federal Republic of Nigeria (as amended).YEMISI v FIRS [2013[ ALL FWLR pt 693, 1992.

4.     CASE OF THE DEFENDANTS

In the 21 paragraph counter affidavit, deposed to by one Hindatu W. Lamorde, the Acting Secretary Adamawa State Judicial Service commission, she deposed that the claimant in this case was the Secretary of the 1st defendant i.e. Adamawa State Judicial Service Commission from 17/12/2015 uptil the 5th day of November, 2018 when she was lawfully retired by the 1st defendant and notification of appointment of the claimant as Secretary Judicial Service commission dated 18/12/2015 are hereto attached. That the claimant was queried and she replied.

 That the 1st defendant is one of the executive bodies established/ created by the Constitution of Nigeria with power to advice the National Judicial Council on suitable persons for nomination to judicial offices of superior Courts of record in the State; recommend to the National Judicial Council the removal from Office of the said Judicial officers and to appoint, dismiss and exercise disciplinary control inter alia, over members of staff of the Judicial service of the State.

That the 5th defendant on 16th February, 2009 was sworn in as a non ex-officio member of the 1st defendant for a term of 5 years and re-appointed in April, 2014 for a second term, of 5 Years due to expire in the month of April, 2019.

Submitting on issue 1 in his written address for the defendants, learned counsel argued that the claimant has failed to discharge the burden of proving that she was appointed by the Governor. That the claimant was a staff of the 1st defendant. That since the office of the Secretary, Adamawa State Judicial Service Commission, which the claimant occupied before her retirement, is not mentioned or specified in the Constitution, the said office falls in the category of “all other members of staff of the Judicial service of the State” over which the 1st defendant by virtue of paragraph 6 (c) of Part II of the Third Schedule to the Constitution, has power to appoint, dismiss or exercise disciplinary control over. Therefore the Regulations 4 (1) of the 1980 Regulations offends the provision of paragraph 6(c) of Part II of Schedule Three to the 1999 Constitution (as amended), which vests such powers in the 1st Defendant, to appoint and exercise disciplinary control over such category of officers. We submit that, to the extent of the inconsistency, by virtue of Section 1 (3) of the said Constitution the said Regulation 4 (1) is void.

Submitting on issue 2 in his written address for the defendants, counsel submitted that from-paragraphs 2 and 3 of the affidavit in support of originating summons, and Exhibits SSEl and SSE2, it is crystal clear, that the claimant was issued a query, to which she replied. It is also clear from paragraphs 4 & 5 of the counter affidavit and Exhibits JSC, and JSC 2 attached thereto, that the 1st defendant at its meeting of 5th November, 2018 deliberated on the allegation made against the claimant in Exhibit SSEl, and her reply thereto 1n Exhibit SSE2, before reaching its decision.

It is submitted that, the claimant’s insistence that, the 1st Defendant ought to have given her another opportunity at its meeting of 5/11/2018 to make oral representation is a misconception of the legal import of fair hearing. It submitted further that, an employer accuses an employee of misconduct by way of a query, and allows the employee to answer the query, before the employer takes a decision on the employment of the employee, that satisfies the requirement of fair hearing. B.A IMONIKHE V UNITY BANK PLC (2011) 12 NWLR   (PT. 1262) 624 AT 641.

Submitting on issue 3, learned counsel argued that from Exhibits SSE13, SSEl4, SSE 15, SSEl6, SSE17 and SSEl8, the 5th defendant who was appointed a non ex-officio member of the 1st Defendant in the month of March, 2009 for a term of 5 years, was re-appointed in April, 2014 for a further and final tenure of 5 years that will lapse in April, 2019. Consequently, the 1st defendant was properly constituted at its meeting of 5th November. 2018 and its    decisions, including the retirement of the claimant was not tainted with any constitutional vice.

Further Submitting on issue 4, learned counsel argued that that the 1st defendant did observe the rules of natural justice in the entire process, leading to the retirement of the claimant.

Similarly, on issue 5, counsel submitted that the claimant failed to discharge her burden of proof by failure to plead or tender the condition of service. UNIVERSITY OF CALABAR V. DR. OKON J ESSIEN (1996) 10 NWLR (PT. 477) 225 AT 257. That the claimant ought to place before the court the following materials;

a.     He is an employee of the defendant.

b.      How was he appointed and what are the terms and conditions of his appointment.

c.       Who can appoint him and who can remove him.

d.     What are the circumstances under which his appointment can be terminated.

B.A. MOROHUNFOLA V KWARA STATE COLLEGE OF TECHNOLOGY (1990) 4 NWLR (PT. 145) 506. In the present case, the claimant failed to put before this Honourable Court her letter of appointment, the terms and condition of service, and in what manner, there was noncompliance with those terms, as to render same wrongful, null and void.   

5.     CLAIMANT’S REPLY ON POINTS OF LAW

Replying on points of law, claimant counsel submitted that staff of the Judicial Service of the state are not the same thing as staff of the Judicial Service Commission. That a complain that there was denial of fair hearing must be determined in the light of the facts in each case. That the correct construction to Section 200(3) of the Constitution is that i. Once a person has been appointed as a member of the Commission, he cannot be re appointed for a 2nd term. ii. Only an ex- officio member can be re appointed for a second term.

That the requirement that the letter of employment (stating the condition of service) shall be pleaded or tendered in evidence envisage a litigation that is Sought on the basis of statement of claim or pleadings, when the parties shall in addition to their pleadings lead oral and documentary evidence in Court and it does not extend to an action commenced by way of originating Summons  and this  is Clear from the express provision of Order 3 Rule 13 of the Rules of this court.  

6.     COUT’S DECISION

The questions raised in the originating summons, the reliefs, the affidavit and written address of counsel, relied heavily on Adamawa State Judicial Service Commission Regulations 1980, which claimant, in another breath, argues that it does not apply to her employment. The claimant did not plead or frontload the said Regulations as required by Order 3 Rule 17 of the Rules of this Court which provides as follows;

17-(1) an originating summons shall be accompanied by;

(a) An affidavit setting out the facts relied upon to sufficiently identify the cause or causes of action in respect of which the claimant claims relief or remedy;

(b) Copies of the instrument indicating part(s) sought to be construed (other than an enactment) and other related documents.

(c)  A written address containing the issues to be determined and succinct arguments of the issues.

In the absence of this vital document, the Court is not put in a position to determine any question that relates to application or non application of the said regulations to the claimant’s employment and whether the provisions of the said regulations were complied with or violated.

Where a claimant wants the Court to determine questions based on the construction of any instrument, the production of such instrument is a sine quanon for determination of such questions by the Court. Without the instrument sought to be construed, as in this case, the Court cannot go beyond reading counsel’s arguments.

Counsel have made long and repeated arguments to the effect that the Judicial Service Commission has no power to discipline or compulsorily retire the claimant from service but failed short of saying how the claimant can be retired from service or removed from office apart from saying that the best that the defendants could have done was to make representations to the Governor in respect thereof, without citing any relevant law or instrument, as if there is no law or rules governing the employment of the claimant.

The claimant never deposed to the fact that she was appointed by the Governor of Adamawa State, in paragraph 25 her affidavit, claimant only submitted a legal argument thus;

“The office of the secretary to the 1st defendant which I occupied,(an executive office) being subject to the appointment by the Governor of Adamawa state (2nd defendant) is not under the powers of the 4th defendant to appoint, dismiss or compulsorily retire as secretary of the Adamawa state Judicial Service Commission”.

 Her counsel, in his written address, submitted that the Secretary of the Commission is an appointee of the Governor of Adamawa State based on Paragraph 4(1) Adamawa State Judicial Commission Regulation 1980, which regulation is not before the Court, and that the claimant derives her office from the provision of Section 197(1)( c)  of the Constitution of the Federal Republic of Nigeria (as amended).

The defendants have submitted that the claimant was not appointed by the Governor of Adamawa but was a staff of the 1st defendant. The claimant counsel, rather than exhibiting her appointment letter, chose to reply based on Paragraph 4(1) Adamawa State Judicial Commission Regulations 1980, which regulations are not even before the Court.

Whether or not the claimant was appointed by the Governor of Adamawa State pursuant to section 197 of the 1999 Constitution or Paragraph 4(1) of Adamawa State Judicial Service Commission Regulations 1980 or she was a staff of the 1st defendant is a question of fact, not of law.

The question of who can remove, discipline or retire the claimant becomes a question of law only after the fact of who appointed her is established. Without such facts in evidence, the Court cannot make any form of assumption or speculation on the appointment and removal or retirement of the claimant. See

ECOBANK NIGERIA LIMITED v. ANCHORAGE LEISURES LIMITED & ORS

(2016) LPELR-40219(CA) where the court Per Oseji, J.C.A. at Pp. 34-35, Paras. E-A held;

"A Court should not decide a case on mere conjecture or speculation because Courts of law are Courts of fact and law. They decide issues on facts established before them and on laws and must avoid speculations. See ANI VS STATE (2009) 6-7 SC (PT III) Page 1; AGIP (NIG) LTD VS EZENDU (2010) 1 SC (PT II) 124."

The only document relating to the appointment of the claimant is exhibit JSC (viii) from the defendants; it is a mere notification of appointment, the notice is from “Judicial Service commission, Yola, Adamawa State” addressed to the “Chief Registrar, Judiciary, Yola”. As the name indicates, this document is just a notification of appointment; besides her salary level, exhibit JSC (viii) did not state who made the appointment, the tenure of the appointee or what are the terms and conditions of appointment.  

It is to be noted that the claimant was not removed from office but compulsorily retired from service. Only the staff of Government ministries, departments and parastatals are usually retired from service.

Appointees of the Governor sequel to section 197 of the Constitution or any other state law are not usually retired from service. They only serve their tenure and vacate office or they get removed from office for any reason in line with the relevant applicable law.

The claimant has not in any way suggested that she is not subject to retirement from service; she seems contented to only contest the power of the 1st defendant to discipline her by compulsorily retiring her from service and the procedure adopted.

For the 1st defendant to compulsorily retire the claimant from service, this suggests that the claimant was a staff of the 1st defendant as contended. This is probably why neither claimant in her affidavit, nor her counsel in his written address, relied on section 201 of the Constitution. I am in great difficulty believing that counsel and claimant who are both lawyers read sections 197, 198, 199 and 200 of the 1999 Constitution but did not read section 201 thereof. However, this only leaves the question of who appointed the claimant unanswered by the evidence before the Court.

The express provision for the removal of the chairman and members of the state Judicial Service Commission appointed by the Governor sequel to section 197 of the Constitution is as provided for in section 201 of the 1999 Constitution but counsel stopped at section 200 of the Constitution and never relied on this section.

Section 201 of the Constitution provides thus;

201.   Removal of members

(1)  Any person holding any of the offices to which this section applies, shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.

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

 

The failure of the claimant and her counsel to rely on section 201 of the Constitution as the applicable provision for the removal of the claimant, coupled with the fact that the claimant was not removed from office but retired from service by the 1st defendant who claims that the claimant was its staff, disentitles this court from resorting to this Section of the Constitution in the absence of the claimants’ appointment letter.

 

In view of the denial by the defendants that the claimant was not appointed by the Governor but was a staff of the 1st defendant, the non mention of secretary in section 197 of the Constitution, the apparent refusal of the claimant to produce her letter of appointment and the Adamawa State Judicial Service Regulations 1980, the materials for determination of this controversy are not before the Court and that is against the claimant who seeks a relief before the Court and thus bears the burden of proof. See section 136 of the evidence Act, 2011.

This appears like a situation that is ripe for the invocation of the provisions of section 149(d) of the Evidence Act 2011, but the Court is not so minded.

 

The defendants have submitted that the claimant has a duty to prove before the Court the following;

a. That he is an employee of the defendant.

b. How was he appointed and what are the terms and conditions of his appointment.

c. Who can appoint him and who can remove him.

d. What are the circumstances under which his appointment can be terminated.

 

This indeed is the position of the law. Indeed the claimant has placed none of these materials before the Court. The document that would have placed these materials before the Court is the appointment letter read together with the 1999 Constitution and probably, the Adamawa State Judicial Service Commission Regulations 1980.

In the wisdom of claimants counsel, he did not need to plead or attach claimant’s letter of appointment because he did not come by way of a complaint or statement of claim.

The pleading and production of documents in litigation is not for the purpose of fulfilling all righteousness of the Rules of Court, but to aid the parties in establishing their case and to aid the Courts in deciding the case based on relevant evidence. Learned claimant counsel did not appear to appreciate this fact.

The claimant before this Court, seeking for a declaration that her compulsory retirement was unlawful, and her counsel arguing that she was an appointee of the Governor, without presenting her appointment letter, in view of defendants denial; is like a hunter with a bow and a quiver without arrows, his chances of returning home with a game is left to imagination and wishful thinking.

The burden of proof is still hanging on the neck of the claimant and there are missing information which the appointment letter could have provided to aid the Court in determining the live issues in this suit, but now, the Court is incapacitated.

The position of the law is that only proven claims are grantable by Courts of law.

See IN-TIME CONNECTION LIMITED V. MRS. JANET ICHIE (2009) LPELR-8772(CA) where the court held;

 

The duty of every court of law is to render to everyone according to his proven claim, and nothing more. It cannot give to a party a relief he has not proved. See AKAPO v. HAKEEM-HABEEB (1992) 6 NWLR (pt.217) 266; HARUNA v. MODIBO (2004) 16 NWLR (pt. 900) 247 at 564.

The absence of the claimant’s appointment letter in a case in which the claimant’s status of employment is in issue, is an annoying obstruction on the adjudicatory path of the Court.

The summation of all that has been said is that the questions submitted for determination cannot be determined without the Adamawa State Judicial Commission Regulations 1980 and the claimant’s appointment letter. Accordingly, the claimant has failed to discharge the burden of prove placed on her, she is not entitled to any relief from the Court, this suit is accordingly dismissed.

I make no order as to cost.

This is the judgment of the Court and it is entered accordingly.

 

…………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

JUDGE, NICN, YOLA.