IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 6th October 2017
SUIT NO: NICN/OW/01/2016
1. M. C. Uwasomba Esq.
2. Mrs. M. C. Enwerem
3. Mrs E. C. Aguta Claimants
4. C. N. Akowundu Esq.
5. S. C. Iwueze Esq.
1. Governor of Imo State
2. Attorney General of Imo State
3. Imo State Civil Service Commission
4. Imo State Government.
K. C. O. Njemanze SAN, with him, K. I. Uduma for the Claimants
No appearance for the Defendants
The Claimants instituted this action by way of Originating Summons dated and filed the 8th day of January 2016 wherein they sought the determination of the following questions:
(i) Whether the Governor of Imo State has the statutory power to direct the Civil Service Commission of the State to suspend any Civil Servant indefinitely without salaries.
(ii) Whether the Civil Service Commission of a State can exercise its statutory powers when it is not constituted as required by law.
(iii) Whether a civil servant can be found guilty of negligence of duty without being heard.
Upon the determination of the above questions, the Claimants claimed against the Defendants as follows:
(i) A Declaration that the Claimants are still in the service of Imo State Government and are entitled to their salaries, emoluments, benefits and privileges.
(ii) A Declaration that the directive or instruction from the 1st Defendant to the 3rd Defendant on the purported suspension of the Claimants is unconstitutional, null and void, and of no effect.
(iii) A Declaration that the purported suspension of the Claimants from Imo State Civil Service (vide letters dated 19/11/2015 Reference Numbers CSC/P.9/S.6/IV/274,CSC/P.9/S.6/IV/278,CSC/P.9/S.6/IV/276, CSC/P.9/S.6/IV/275 and CS/P.9/S.6/IV/280) are null and void, and of no effect.
(iv) An Order setting aside the purported suspension of the Claimants from Imo State Civil Service.
(v) An Order restoring the Claimants to their positions as Directors in the Imo State Civil Service.
(vi) An Order that the Claimants be paid their salaries, emoluments and allowances from May 2015.
(vii) Ten percent (10%) interest on the judgment sum until it is finally liquidated.
(viii) An Injunction restraining the Defendants, their servants and/or agents from interfering, in whatsoever manner, with the Claimants' employment in the Imo State Civil Service.
(ix) An Order restraining the Defendants, their servants and or agents from taking further steps or acting in any way detrimental to the Claimants' rights and interest.
In support of the Originating Summons is an Affidavit of 29 paragraphs deposed to by one Kalu Uduma Esq. In the accompanying written address, the Claimants’ counsel raised three issues for determination as follows:
1. Whether the Governor of Imo State has the statutory power to direct the Civil Service Commission of the State to suspend any Civil Servant indefinitely without salaries.
2. Whether the Civil Service Commission of a State can exercise its statutory powers when it is not constituted as required by law.
3. Whether a civil servant can be found guilty of negligence of duty without being heard.
On Issue 1, the Claimant’s Counsel submitted that Section 1 (1) and (2) of the 1999 Constitution (as amended) provides for the supremacy of the Constitution and that the Imo State Civil Service Commission is a creation of the 1999 Constitution (as amended) and the powers of the 3rd Defendant are clearly set out in Part II of the Schedule to the Constitution. Counsel argued that the provisions of Section 202 of the Constitution providing that in exercising its power to make appointment 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 are clear and unambiguous. See DURU vs. FRN (2013) 6 NWLR (Pt. 1351) 441 SC. Counsel contended that by virtue of the above submission, the 1st Defendant cannot direct or control the 3rd Defendant in the exercise of her disciplinary powers over persons in the Civil Service of Imo State. He referred the Court to Rule 04102 of the Public Service Rules. Counsel cited the case of HART vs. MILITARY GOVERNOR OF RIVER STATE (1976) 11 SC 211, where the Supreme Court held that by referring the disciplinary aspect of the matter to the Military Governor for a decision as a Public Service Commission of the Rivers State, the Commission had abdicated its constitutional responsibility in the matter and that what the Military Governor did was ultra vires his constitutional powers. See also NAWA vs. A.G. CROSS RIVER STATE (2007) LPELR - 8294 (CA), the unreported decision of the Court of Appeal, Port Harcourt Division in. APPEAL NO. CA/PH/191/2003: CIVIL SERVICE COMMISSION IMO STATE & ANOR. vs. GODWIN ONYEMA ANUFOROM delivered on 12/12/2006. Counsel further submitted that the Government of the day is bound to conduct the affairs of the State according to Law and where powers are vested in any person or body by the Constitution or a prescribed way or manner of doing a thing is stated in the Constitution, there must be strict compliance with the Constitutional provision. The Constitutional powers vested in the Civil Service Commission cannot be usurped by the Governor of a State in whatsoever manner. See GOVERNOR OF LAGOS STATE vs. OJUKWU (1986) 1 NWLR (Pt. 18) Pg. 621; GOVERNOR OF EKITI STATE vs AKINYEMI (2011) 17 NWLR (Pt. 1276) Pg. 373, PROVOST L.A.C.O.E.D. vs. EDUN (2004) 6 NWLR (Pt. 870) Pg. 476.
Counsel submitted that from the affidavit evidence presented by the Claimants including documents exhibited, it is clear that the Claimants are Civil Servants on pensionable cadre and their service has statutory flavor and that the conditions of service of the Claimants are governed by the Constitution, Imo State Public Service Rules and other extant laws. See P.H.C.N. PLC vs. OFFOELO (2013) 4 NWLR (Pt. 1344) Pg. 417, NAWA vs. A.G. CROSS RIVER STATE (Supra).
It is counsel’s submission that in Exhibits Q, R, S, T and U, the purported suspension letters issued by the 3rd Defendant, the maker stated that the 3rd Defendant was acting on the directive of the 1st Defendant which is against Section 202 of the Constitution. Counsel submitted that the purported suspension of the Claimants is therefore unconstitutional, null and void.
On Issue 2, the Claimants Counsel referred the court to Section 197 of the Constitution (as amended) arguing that by virtue of the provisions of Part II of the 3rd Schedule to the Constitution, the 3rd Defendant shall comprise of a Chairman and not less than 2 and not more than four other persons and that the quorum for a meeting of the 3rd Defendant and the manner of reaching decision of the said body as provided for in Section 203 of the Constitution shall not be less than one third of the total number of members of that body at the date of the meeting and the decision shall be by vote cast by members of the Commission. It follows that before the 3rd Defendant can be said to have taken any decision, the quorum specified in Section 203 must have being met. Counsel argued that in the instant case, evidence before the Court shows that at all times material to the purported suspension, the 3rd Defendant did not have a Chairman and members having not been duly constituted, the 3rd Defendant cannot be said to have met and taken a decision to suspend the Claimants.
On Issue 3, the Claimants’ counsel cited the case of GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) Pg. 550, where the Supreme Court held that fair hearing implies the following:
(a) A person knows what the allegations against him are.
(b) What evidence has been given in support of such allegations.
(c) What statements have been made concerning those allegations.
(d) Such person has a fair opportunity to correct and contradict such evidence.
e) The body investigating the charge against such person must not receive evidence behind his back.
Counsel also referred to Chapter 4 Rule 04405 Public Service Rules and submitted that the failure of the Defendants to hear from the Claimants before concluding that they are negligent and proceeding to suspend them amounts to a grave violation of the Claimants' right to fair hearing and that the purported suspension is null and void. See FRN vs. AKUBUEZE (2010) 17 NWLR (Pt. 1223) 547; ODIGWE vs. JSC DELTA STATE (2011) 10 NWLR (Pt. 1255) 254; MPAMA vs. FBN (2013) 5 NWLR (Pt. 1346) P. 176; BARIGHA vs. PDP (2013) 6 NWLR (Pt. 1349) 108; JSC CROSS RIVER STATE vs. YOUNG (2013) 11 NWLR (Pt. 1364) 1.
The affidavit in support of the originating summons was deposed to by Kalu Uduma Esq., a Legal Practitioner in the law firm of Njemanze & Njemanze, which is the law firm representing the Claimants in this suit. I have gone through the contents of the affidavit and I observe that the matter is not one to be decided under the originating summons proceedings. Notwithstanding that the Claimants couched the questions for determination in such a way to appear as if the suit is purely a matter for interpretation, the facts deposed to in the affidavit disclose otherwise. Although the Defendants did not file any process on which to say a dispute of facts have arisen, the affidavit filed by the Claimants has not convinced me to determine this matter based on that affidavit. Certain documents were referred to in the affidavit but which were not exhibited. These documents are necessary for the determination of the questions the Claimants have sought to be determined. The Claimants have also complained of non-compliance with the Public Service Rules during their suspension. There is need to hear the Claimants’ oral evidence with regard to their allegations. I will therefore order the Claimants to file their pleadings together with the Statement on oath of their witnesses. It is so ordered.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe