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/07/2017
Mrs. Gloria Egwuagu - Claimant
1. Governor of Imo State
2. Attorney General of Imo State Defendant
3. Imo State Civil Service Commission
4. Imo State Government.
K.C.O. Njemanze SAN with L.A. Njemanze and N.C. Ohakwe for the Claimants
No appearance for the Defendants
The Claimant instituted this action in this court on 9th February 2017 by way of Originating Summons wherein she raised the following questions for the determination of the court:
(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 Defendants adhered to the procedure laid down by the law and the rules before they purportedly suspended the Claimant.
Upon determination of these questions, the Claimants sought the following reliefs:
(i) A Declaration that the Claimant is still in the service of Imo State Government and is entitled to her 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 Claimant is unconstitutional, null and void, and of no effect.
(ii) A Declaration that the purported suspension of the Claimant from Imo State Civil Service vide letters dated 16/11/2016 Reference Number MJI/P/1184/1/187 is null and void, and of no effect.
(iii) An Order setting aside the purported suspension of the Claimant from Imo State Civil Service.
(v) An Order restoring the Claimant to her position as Deputy Director in the Imo State Civil Service.
(vi) An Order that the Claimant be paid her salaries, emoluments and allowances from November 2016.
(vii) Ten percent (10%) interest on the judgment sum until it is finally liquidated.
(viii) Injunction restraining the Defendants, their servants and or agents from interfering, in whatsoever manner, with the Claimant’s 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 Claimant’s rights and interest.
The Originating Summons was accompanied by a 19 paragraph affidavit deposed to by the Claimant. In the accompanying written address, the Claimant’s Counsel raised two 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 Defendants adhered to the procedure laid down by the law and the rules before it purportedly suspended the Claimant.
On Issue 1, the Claimants Counsel submitted that Section 1 (1) and (2) of the 1999 Constitution (as amended) provides for the supremacy of the Constitution. See P.D.P. vs. C.P.C. (2011) 17 NWLR (Pt. 1277) 485 at 511; A.G. Abia State vs. A.G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 381. By Section 197(1) of the 1999 Constitution (as amended), the Imo State Civil Service Commission is a creation of the 1999 Constitution (as amended). Counsel submitted that the powers of the 3rd Defendant are clearly set out in Part II of the 3rd Schedule to the Constitution which includes the appointment of persons to offices in the State Civil Service and the dismissal and exercise of disciplinary control over persons holding such offices.
Counsel submitted that the provisions of Section 202 of the Constitution are clear and unambiguous. See DURU vs. FRN (2013) 6 NWLR (Pt. 1351) 441 SC. By virtue of Section 202 of the 1999 Constitution, 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. See Rule 04102 of the Public Service Rules. See also HART vs. MILITARY GOVENOR OF RIVER STATE (1976) 11 SC 211. Counsel submitted that the Government 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 where a prescribed way or manner of doing a thing is stated in the Constitution, there must be strict compliance with the Constitutional provision. Counsel contended that 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. It was Counsels submission that the procedure for disciplining a public servant in Imo State is provided for in Sections 04302, 04303, 04304 and 04305, Imo State Public Rules Chapter 4 and that from the affidavit evidence presented by the Claimant including documents exhibited, it is clear that the Claimant is a Civil Servant on pensionable cadre and her service has statutory flavour. Counsel contended that the conditions of service of the Claimant is 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) P. 417; NAWA vs. A.G. CROSS RIVER STATE (Supra).Therefore, in exercising disciplinary control over the Claimant, the 3rd Defendant should not be subject to the control and directive of the 1st Defendant. From the affidavit evidence (including documents marked Exhibits) it is clear that the 1st Defendant directed the 3rd Defendant to suspend the Claimant and the Directors and Deputy Directors in the Imo State Ministry of Justice which is against the provisions of Section 202 of the 1999 Constitution, and therefore unconstitutional, null and void.
On Issue 2, the Claimants Counsel submitted that where a statutory requirement for exercise of a legal authority is laid down, it is expected that the public body vested with such authority would follow the requirement to the detail. The non- observance in the process of reaching any decision renders the decision itself a nullity. U.N.T.H.M.B vs NNOLI (1994) 8 NWLR (Pt. 363) 376. Further, where a legislation directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such procedure must be strictly followed. See UNTHMB vs. NNOLI (Supra), C.C.B. (NIG) PLC vs. A.G. ANAMBRA STATE (1992) 8 NWLR (Pt. 261) 528 at 556; PSYCHIATRIC HOSPITAL MANAGEMENT BOARD vs. EJITAGHA (2000) 11 NWLR (Pt. 677) 154; AMASIKE vs. REGISTRAR GENERAL CORPORATE AFFAIRS COMMISSION (2006) 3 NWLR (Pt.965) 462 at 500. Counsel also submitted that the Imo State Public Service Rules (which was revised and printed in 2001) stipulates mandatory procedures to be adhered to in the discipline of officers (such as the Claimant) in the Imo State Civil Service. Rules 04301, 04302, 04303, 04304, 04305, 04306, 04401 and 04405 are relevant in the determination of the instant case. Rule 04402 of the Public Service Rules stipulate that disciplinary procedure for serious misconduct shall be in accordance with Rules 04302 to 04306.
Counsel submitted that after receiving the Claimant's answer to the query, the Defendants failed to adhere to the procedure stipulated in the Imo State Public Service Rules Particularly Rules 04302 to 04306 and 04405 and that the Claimant was not given adequate opportunity of making her defence by the Defendants as stipulated and guaranteed by the 1999 Constitution and Rules 04305 and 04306 of the Imo State Public Service Rules before the purported suspension. GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (Pt. 18) 550, FRN vs AKUBUEZE (2010) 17 NWLR (Pt. 1223) 547, ODIGWE vs. JSC DELTA STATE (2011) 10 NWLR (Pt. 1255) 254. Counsel also submitted that by virtue of the provisions of Rules 04405 of the Public Service Rules, suspension shall only apply where a prima facie case, the nature of which is serious, has been established against an officer; and the suspension shall be on pending conclusion of investigation into the misconduct. Counsel argued that for a prima facie case of a serious nature to be established against an officer (such as the Claimant in the instant case) the quantum of evidence on the material issue before the 3rd Defendant must not be minimal. According to counsel, by virtue of the provisions of Section 36 of the 1999 Constitution the Claimant is entitled to fair hearing in the determination of her rights and obligation (including before the purported suspension) and this presupposes that the Claimant is entitled to know what evidence has been given in support of allegations against her, what statements have been made concerning those allegations and must have a fair opportunity to correct and contradict such evidence. Counsel posited that the 3rd Defendant must not receive evidence behind the Claimant's back. GARBA vs. UNIVERSITY OF MAIDUGURI (Supra). It follows that a prima facie case cannot be said to have been established against the Claimant who was not heard by the Defendants; before whom evidence was not received and who was not given the opportunity to correct and contradict any evidence against her. Counsel contended that, the situation is made worse when it is realized that the letter of suspension did not state that a prima facie case of a serious nature has been established against the Claimant; and that the suspension is for an indefinite period and not made subject to pending investigation or the happening of any event. Counsel also contended that ex facie the letter of suspension, the purported suspension did not comply with the provisions of Rule 04405 of the Imo State Public Service Rules and that the Defendants have failed to observe the requirements or procedure laid down in the Imo State Public Service Rules and the 1999 Constitution; and as such the suspension of the Claimant is a nullity and the Claimant is entitled to the grant of the reliefs sought in this suit. U.N.T.H.M.B. vs. NNOLI (supra).
The Claimant filed an affidavit of 19 paragraphs in support of the originating summons and it was deposed by the Claimant herself. 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 Claimant 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 upon which to say that a dispute of facts has arisen, the affidavit filed by the Claimant 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 determination of the question the Claimant sought to be determined. The Claimant has also complained of non-compliance with the Public Service Rules during her suspension. There is need to hear the Claimant’s oral evidence with regard to her allegations. I will therefore order the Claimant to file her pleadings together with the statement on oath of her witnesses. It is so ordered.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe