IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YOLA JUDICIAL DIVISION

HOLDEN AT YOLA

BEFORE HONOURABLE MR. JUSTICE SANUSI KADO

 

10^TH DAY OF MAY 2021                SUIT NO. NICN/YL/15/2019

 

BETWEEN

1. Hon. Ngyamanu Shadrack …………………………………………………..…… Claimant   

                

AND

 

1. The Governor of Adaawa State                                   

2. Attorney-General of Adamawa State

3. Adamawa state House of Assembly                                                    Defendants

4. Adamawa State House of Assembly Service Commission

5. Accountant-General of Adamawa State

6. Mrs. Zainab Ahmed

JUDGMENT

1. The Claimant took out a general form of complaint dated 2^nd November, 2019, against the defendants, wherein as per paragraph 45 of the statement of facts he prays for:-

1. 1. A declaration that the termination of the Claimant’s appointment as Commissioner/Member 3 of the Adamawa State House of Assembly Service Commission by the 1^st defendant via a letter dated 2/8/2019 and which termination was confirmed by the 3^rd defendant on the 6/8/2029
   2. A declaration that following the unlawful/wrongful termination of the Claimant’s appointment, the Claimant is entitled to be paid all benefits, allowances and entitlements accruable to him as provided in the Claimant’s appointment letter and for a period of five years.
   3. An Order directing the Defendants to pay the Claimant his entitlements, allowances and or benefits for the period of five years totaling ₦39,690,992.00.
   4. An Order directing the defendants to pay the sum of 15% on all entitlements accruable to the Claimant as Solicitors professional fee which sum is ₦5,953,648.9
   5. The sum of ₦20,000,000.00 as exemplary/punitive damages against the defendants.

OR IN THE ALTERNATIVE TO A, B, C & D ABOVE: CLAIMANT SEEK IN THE ALTERNATIVE, THE FOLLOWING RELIEFS:

2. 1. A declaration that the termination of the appointment of the Claimant as Member/Commissioner 3 of the Adamawa State House of Assembly Service Commission by the Defendants is not in accordance with the provisions of the Adamawa State House of Assembly Service Commission Law 2002 or any other law and therefore illegal, unlawful, null and void and of no effect whatsoever.
   2. A declaration of the Honourable Court that the Claimant’s appointment as Member/commissioner 3 of the Adamawa state House of Assembly Service Commission is still valid and subsisting and can only be terminated as laid down by the law establishing the Commission,
   3. An order setting aside the purported termination of the appointment of the Claimant as Member/Commissioner 3 of the Adamawa State House of Assembly Service Commission as same is unlawful, null and void and of no effect.
   4. An order of the Honourable Court setting aside and declaring as null and void, the appointment of the 6^th defendant Mrs. Zainab Ahmed as Commissioner 3 in the Adamawa State House of Assembly Service Commission while the appointment of the claimant as Commissioner 3 in the Commissioner (sic) is still subsisting.
   5. An order directing the defendants to pay the claimant their (sic) salaries, allowances and benefit from April, 2019 which is the sum of N453, 165 per month and for the Months of April, May, june and July 2019 before the unlawful termination of appointment via letter dated 2/8/2019 giving the total sum of N1,812,660 and thereafter at same amount till the determination of this suit and further order directing defendants to conyinue payment of the claimant’s entitlements for the duration of his tenure until otherwise removed as provided by law.
   6. The sum of N20,000,000.00 as exemplary/punitive damages against the defendants.
   7. Cost of the suit.

2. The general form of complaint was accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents to be relied on and photocopies of documents to be relied on at the trial
3. The claimant testified in proof of his case as CW1. CW1 after identifying his witness statement of oath adopted same as his evidence in this case. CW1 also tendered documents in evidence which were admitted and marked as exhibits accordingly.
4. The 1^st, 2^nd and 5^th defendants with leave of court fled joint statement of defence and counter claim out of time. The statement of defence filed on the 24^th of January, 2020, was deemed properly filed on the 14^th December, 2020.  The 1^st 2^nd and 5^th defendant fielded one Aggrey B. Ali a deputy Permanent Secretary Cabinet under the office of the Secretary to the State Government who testified as DW1. No document was tendered by the defendants through DW1.
5. In the counter-claim, the 1^st 2^nd and 5^th defendants, prays for:-

1. A declaration that the appointment of the claimant as member iii of the 4^th defendant by the former Governor Muhammad Bindow Umaru Jibrilla is unlawful, null and void and of no effect whatsoever.
2. A declaration that the claimant is not entitle to be paid any benefit salaries, allowances, and entitlement accruable from the unlawful appointment.
3. A declaration that the termination of the appointment of the claimant as member iii of the 4^th defendants by the 1^st defendant is lawful and valid.
4. A declaration that due proves was not followed in the appointment of the claimant as member iii of the 4^th defendant in line with the provision of the law.
5. Any other order as the Honourable court may deem fit to make in the circumstances of this case.

6. The 3^rd 4^th and 6^th defendants file defence and called one Yahaya Danjuma, Chief Principal Registrar with the 3^rd defendant who testified in proof of their defence as DW2. DW2 identified his witness statement on oath adopted it as his evidence and then tendered documents which were admitted in evidence and marked as exhibits accordingly.
7. The facts that warranted claimant to file this suit are that the immediate past Governor of Adamawa State appointed the claimant as Commissioner 3, with the State House of assembly Service Commission; this was sequel to confirmation of his nomination for appointment to the post by the 3^rd defendant, as per her votes and proceedings of 9^th April, 2019, see exhibits B and T.   
8. However, upon assumption of duty on 29/5/2019, within eight days, the current Governor of Adamawa State, the 1^st defendant without following any due process of law dissolved the appointment of the claimant on the 6/6/2019.
9. The claimant challenged the termination of his appointment before this Honourable Court in Suit. No. NICN/YL/10/2019 and judgment was delivered on the 18/09/2019 by Hon. Justice K. D. Damulak. The court held that the claimant having been appointed and confirmed as required by law is entitled to a guaranteed tenure of five years removable only by reasons of inability to discharge the functions of his office or for misconduct and that the defendants cannot validly terminate the appointment of the claimant without any allegation of misconduct or for inability to discharge the functions of his office.
10. According to the claimant it was when judgment was reserved in the above mentioned suit that the 1^st defendant in his letter of 02/08/2019 addressed to the speaker of the 3^rd defendant sought for confirmation of the house for the termination of the appointment of the claimant and others on the grounds that due process were not followed during his selection, screening and confirmation as per the requirements of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The 3^rd defendant received the letter on the 06/8/19 and sat on the same day and terminated the appointment of the claimant as sought by the 1^st defendant. It is also the case of the claimant that his appointment is not governed by the Constitution of the Federal Republic of Nigeria, 1999, as amended, but by the Adamawa State House of Assembly Service Commission Law, 2002. The defendants have appointed the 6^th defendant in place of the claimant upon the purported termination of claimant’s appointment.
11. It is the action of the 1^st and 3^rd defendants in terminating the appointment of the claimant for the second time that gave rise to the present suit of the claimant which in the main, is seeking monetary compensation or in the alternative, a reinstatement back to his office which is now being occupied by 6^th defendant.
12. For the 1^st, 2^nd and 5^th defendants the claimant’s appointment was validly terminated in line with the Constitution due to breach or non-adherence to procedure in his appointment. They also filed a counter-claim seeking for declaring the appointment of the claimant as commissioner 3 with the State House of Assembly Commission as null and void and validating appointment of 6^th defendant.
13. The 3^rd, 4^th and 6^th defendants on their part stated that the termination of appointment of the claimant follow due process and in line with section 6(1) of the Adamawa State House of assembly Commission Law, 2002.
14. On 9/2/2021 when this matter came up for adoption of final written addresses, the 1^st, 2^nd and 5^th defendants were not represented. Consequently, counsel for the claimant prays the court to deem the final written address of the 1^st, 2^nd and 5^th defendabt already filed before the court as having been argued. The request of counsel was granted, the final written address of the 1^st, 2^nd and 5^th defendant was in line with Order 45 of the rules  of this court deemed as having been argued. The other counsel before the court then proceeded and adopted the final written address of the respective clients.
15. THE SUBMISSION OF THE 1^ST, 2^ND and 5^TH DDEFENDANTS.
16. The 1^st 2^nd and 5^th defendants submitted three issues for determination. They are:

1. Whether the appointment of the Claimant as Member III in the Adamawa State House of Assembly Service Commission was done with due process and in accordance with prescribed procedures in appointing the State Board Members.
2. Whether the termination of the Claimant’s appointment was valid and in accordance with the law.
3. Whether the Claimant is entitled to the reliefs sought having regard to the facts and circumstances of this case.

ARGUMENTS

17. Issue one: “Whether the appointment of the Claimant as Member III in the Adamawa State House of Assembly Service Commission was done with due process and in accordance with the prescribed procedures in appointing the State Board Members”.
18. It is the submission of counsel that there is no dispute that the Claimant was appointed by the former Governor of Adamawa State just at the wee hour of his administration with less than two months before the expiration or completion of his (the Governor’s) tenure. The former Governor sent the names nominated including the name of the Claimant for appointment as Members of the Commission to the State Assembly on the 9^th April, 2019, the House sat on the same day, voted and passed its resolution on those names and on the 10^th the resolution was said to be communicated to the Governor.
19. Counsel argued that although, the Adamawa State House of Assembly Service Commission Law, 2002 (as amended) is silent on the requirement of the confirmation by the House of Assembly when it comes to appointment of members of the Commission by the Governor, it is the normal procedure for the Governor to send names of those to be given political appointments and these include those to be appointed as board members of Commissions or parastatals in the state to the State House of Assembly for screening and confirmation.
20. According to counsel the appointment of the claimant was done in a hasty and desperate manner without following the normal process for appointment of Board members and this was the reason the present administration when it came to power suspended all appointments and subsequently terminated the appointment of the Claimant after it found out lack of due process and transparency in the appointment.
21. It is submitted that because of the hasty and desperate way the appointment of the Claimant was done, the Claimant was not even screened by the State House of Assembly and this was contrary to the procedural practice or tradition of the House. Every candidate or nominee for appointment must be screened by the House before a resolution is passed.
22. It is submitted that though section 4(3) of the Adamawa State House of Assembly Service Commission Law was silent on the recourse to the House when it comes to appointment of Members of the Commission by the Governor, it has been the practice and procedure to send nominees to the House for screening and confirmation (approval) whenever the Governor of the State appoints a Member/Members of the Commission.
23. It is submitted that there was never a time a Member of the Commission was appointed without being screened and confirmed by the State House of Assembly in the history of the Commission and this was the reason the Governor sent the name of the Claimant to the House for screening and confirmation.
24. It is submitted Section 6(1) of the law provides that the Chairman or any member of the Commission shall be removed by the Governor acting upon an address by two-thirds majority of the State Assembly. It is the contention of counsel that an authority or body that has the power to confirm or affirm the termination of a person also has the power to affirm or confirm his appointment. On this submission reliance was placed on the provisions of section 11(1) of the Interpretation Act.
25. It is submitted that the Claimant has not presented any evidence before this Honourable Court either orally or documentary to show that he was screened by the House. It is the contention of counsel that failure to screen the Claimant by the State House of Assembly, whose name was submitted by the then Governor for that purpose, rendered the exercise questionable, illegal and invalid.
26. It is the contention of counsel that the appointment of the Claimant was embedded by irregularities and illegalities and that was the reason the present administration invalidated the process and terminated the appointment of the Claimant. It is further argued that the basis of conducting screening is to ascertain the suitability of the candidate to the position or office he is nominated for and this will determine if he is really qualified for the position or office.
27. Counsel also argued that the Claimant stated in his statement of claim that he took oath of office and oath of allegiance after his appointment was issued to him and after writing his acceptance. That was also an irregularity and desperation on the part of the Claimant to assume office by all means.
28. It is submitted that oath taking is a constitutional requirement which has been enshrined in all governmental organizations and bodies. The oath of office serves not only to establish a bond of fidelity and undivided loyalty between the individual and the federation of Nigeria but also underscores the enormous responsibilities associated with public service. Oath of office constitutes a condition precedent for entering upon the duties of the office to which it relates just as it serves to activate the term of office granted by the constitution or law. It is clear from the pleadings of the Claimant and the documents attached relating to oath taking that the Claimant entered office and assumed duties of the office before taking the oath of office. This is contrary to the provisions of the constitution which requires an appointee to take oath of office before assuming duties of the office.
29. According to counsel the Claimant in his statement of claim stated that he was issued with an appointment letter dated 10^th of April, 2019 and on the 12^th April, 2019 he wrote his acceptance letter. It is the contention of counsel that oath taking must precede issuance of appointment and assumption of duties and it is illegal to assume duties without taking the oath of office.
30. It is contended that the issuance of appointment letter to the Claimant preceded, oath taking and the Claimant assuming duties without taking the oath of office is a clear manifestation of desperation by the former administration to install the Claimant in office before the expiration of the tenure of the administration.
31. Counsel urged the court to hold that the appointment of the Claimant was characterized with illegality, lack of transparency and due process and to resolve issue one in favour of the 1^st, 2^nd and 5^th defendants and to also hold that the termination of the appointment of the Claimant by the 1^st defendant was legal and valid.
32. Issue two: “Whether the termination of the Claimant’s appointment was legally valid and in accordance with the law.
33. In arguing this issue counsel submitted that the 1^st and 3^rd defendants legally and validly terminated the appointments of the Claimant in accordance with the provisions of section 6(1) of the Adamawa State House of Assembly Service Commission law.
34. Counsels insisted that the Claimant’s appointment was terminated based on the grounds that due process was not followed in their screening and assumptions of duties whereas the Claimant was not screened by the House, an essential process that must be done and also Claimant failed to take the oath of office before assuming his official duties which is also an essential element that must be observed.
35. Counsel posited that the issue at stake is not about whether the Claimant has failed to discharge functions of his office or exhibited some misconduct in his capacity as a member of the Commission. The question is whether he was validly appointed as Member of the Commission.
36. Counsel contended that the 1^st defendant need not resort to the 3^rd defendant in order to invalidate an illegal an invalid appointment because in the instant case the appointment was invalid ab initio, having failed to satisfy the essential conditions for legal and valid appointment.
37. Section 6(1) of the law stipulates conditions for termination of appointment of a member/members in a situation where they are legally and validly appointed and are discharging their duties accordingly in their capacity as members of the Commission.
38. It is argued by counsel where however, the process of appointing the members is embedded by illegalities and absurdities at the initial stage like in the present case, the appointing authority, who is now the 1^st defendant is at liberty to invalidate the appointment without resort to the conditions laid down in section 6(1) of the law.
39. According to counsel the 1^st defendant with all intent to be fair and law abiding decided to write the 3^rd defendant to confirm and approve the termination of the claimant and it stated the reasons for doing that and the 3^rd defendant unanimously approved the termination.
40. Counsel pointed out that it is essential that in a contract of service like any other contracts, contracting parties must agree to the terms of the contract and all conditions precedent to the formation of the contract must be satisfied by the parties. Failure to render or satisfy any of the conditions will definitely vitiate the contract. Counsel contended that it is on record that the former Governor sent the names of the Claimant to the House for screening and confirmation/approval, the House failed to screen the Claimant but passed a resolution approving the name of the Claimant and thereafter an appointment was given to the Claimant. Failure to screen the Claimant rendered the whole process tainted and questionable and one will begin to wonder if the Claimant would have scale the screening. It also raises the concern that the House soft landed the Claimant who might not be the most qualified candidate for that position or office. Whatever the reason, failure to screen the Claimant renders the appointment of the Claimant illegal, null and void.
41. Issue three: “Whether the Claimant is entitled to the reliefs sought having regard to the facts and circumstances of this case”.
42. It is submitted that the Claimant is not entitled to the reliefs he sought because his appointment as member III of the Adamawa State House of Assembly Service Commission was characterized with lack of due process and transparency and therefore illegal.
43. Counsel also submitted that the claimant never worked he is not entitled to the claim of payment of his salaries and other entitlements for five years he is supposed to serve as a member of the commission totaling ₦39,690,992.50.
44. It is submitted that the Claimant was never paid by the previous administration that employed or appointed him even for once and that means his claims that he resumed duties and had worked for the months of April, May, June and July was nothing but fallacious and is not backed by any evidence. It is submitted that the Claimant is not entitle to be paid any entitlement in the sum of ₦39,690,992.00 or any amount of money because he was not legally and validly appointed as a member of the Commission and had never worked in his capacity as a member of the Commission.
45. Counsel repeated his earlier submission that the Claimant was never screened by the House and he had illegally assumed duties without first taking the oath of office which is a condition precedent before assuming or entering office.
46. On claim for 15% on all entitlements accruable to the Claimant as solicitors’ fees which sum amounts to ₦5,953,648.50. This claim being recovery of cost in litigation is treated as special damages which are assessed using objective criteria not dependent on the discretion of the Court. No evidence has been adduced in proof of this clam.
47. Counsel submitted that it was held by the National Industrial Court sitting in Lagos in the case of ADEBIYI OLUTAYO LANRE VS. DAAR COMMUNICATIONS PLC (Suit No. LA/592/2017) (unreported) which was delivered on 15/10/2018, that cost awardable by the court pursuant to order 55 NICN (CP) Rules 2017 is not required to be pleaded as it is left for the court to assess and award. Where however, cost is presented as a substantive relief, best practice demands that it should be properly pleaded and evidence adduced before it can be awarded. The claimant’s failure to specifically plead and led evidence to prove it, the claimant has failed to lead evidence to prove this claim and is not entitle to it.
48. Counsel also referred to ENILOLOBO VS. ADEGBESON (2001) 2 NWLR (PT.698) 611 and USMAN VS. ABUBAKAR (2001)12 NWLR (PT.728) 685, where it was held; that special damages must be claimed specifically and proved strictly and in cases of contract, cannot be claimed unless they are within the contemplation of both parties at the time of the contract.
49. The Claimant also asked for the sum of ₦20,000,000.00 as exemplary/punitive damages against the defendants. But, has not given sufficient evidence before the Honourable Court either orally or documentary to warrant the award of this relief. Counsel refers to the case of C.B.N VS. OKOJIE (2015) 14 NWLR (PT.1479) 263, PAR. C-D, where it was stated that for a claim for the award of punitive damages to succeed a party must show that;

1. The act or acts of the defendant was oppressive, arbitrary and unconstitutional. For example, where the plaintiff has been arbitrarily or unconstitutionally being arrested and detained.
2. Where the defendant’s conduct had been calculated by him to make profit for himself which might well exceed the compensation payable to the plaintiff.
3. Where expressly authorized by statute.

50. It is contended the claimant has not satisfied the criteria laid down in the above cited case requiring a party claiming for the award of exemplary or punitive damages must not only plead it but must give sufficient evidence to the satisfaction of the court that he is really entitle to it as a result of the existence of the conditions enumerated in the above case which the Claimant has not done in the instant case.
51. Counsel argued that for punitive or exemplary damages to be granted conduct of defendant must be outrageous, by disclosing malice, fraud, cruelty, insolence and contumelious disregard of the plaintiff’s rights on this reliance was placed on the cases of OKAFOR VS. LAGOS STATE GOVT (2017) 4 NWLR (PT.1556) 437-338, PAR. F-C. F.B.N PLC VS. A.G. FEDERATION (2018) 7 NWLR (PT. 1617) 161-162, PARS. H, B, E, SC, MEKWUNYE VS. EMIRATES AIRLINES (2019) 9 NWLR (PT.1677) 225 PARS. D-E, SC.
52. It is submitted that the claimant has not shown this Honourable Court the existence of malice, fraud, cruelty or insolent behavior that disregard Claimant’s rights by the defendants or the conduct to merits punishment. The claimant has not proved his claim for punitive and exemplary damages with sufficient evidence to warrant the grant of the relief by the Honourable Court.
53. On the payment of severance gratuity as contained in the pleadings of the claimant, it is submitted that the claimant is not entitle to severance gratuity as he has not completed his tenure to warrant payment of the severance gratuity. Counsel posited that although, the appointment letter of the claimant (exhibit T) has stated and specified the salaries and allowances payable to the Claimant, it is not backed by the law.
54. Counsel also argued that the severance gratuity payable to the Claimant after a successful completion of his term which amount is 300% of his basic salary is wrong and against the ethics of public service where the term of office is only for five years but he would be paid such a huge amount at the end of his tenure, while a civil servant who works for thirty-five years is denied his gratuity or if he is paid at all it will be nothing but a pitiable amount out of his entire gratuity.
55. Counsel refers to the opinion and reasoning of Justice Abubakar Yahya of the Court of Appeal, Abuja Division who led a three-man panel in the appeal case between Members of the Kogi State Local Govt Service Commission and the Kogi State Government in appeal No.CA/A/810/2017, where the Court expressed its opinion that it was wicked, morally and ethically wrong for political office holders and political appointees who helped themselves to public funds while in office, to claim entitlement to pension and severance allowances. The appeal which was sequel to the ruling of the National Industrial Court sitting in Lokoja, which ordered the parties to file pleadings instead of delivering judgment. Justice Agim, who read the lead Judgment said that it was morally wrong and unfounded for the Claimants to claim for payment of their severance gratuity or allowance because their tenure has come to end.
56. Counsel urged the court to follow the reasoning of the Honourable Justices of the Court of Appeal and disallow this relief of the Claimant and hold that it is wrong to pay the claimant severance gratuity.
57. On the payment of leave allowance which is 10% of the Claimant’s basic salary, it is submitted that in civil service Rules leave allowance is only given upon application by the concern officer requesting to go on leave and it is only after being approved. According to counsel the Claimant has not even worked to warrant being paid leave allowance, counsel urged court not to grant this relief and to hold that the claimant is not entitle to leave allowance as it is only granted upon application and after approval has been given.
58. On the allowances of the domestic staff and personal assistant, we submit that these are allowances not meant for the Claimant and it is not on record that he has really engaged those staff. Counsel urged the court not to grant this relief or allowance.
59. In concluding his submission counsel urged the court to dismiss the case of the claimant as the claimant was not legally and validly appointed as member iii of the Adamawa State House of Assembly Commission, as due process was not followed. The Claimant was not screened by the House before he was given appointment. The Claimant took his oath of office after resumption of functions contrary to the rules of civil service and the Constitution which requires a person to take oath of office before resuming his duties or functions. It was because due process was not followed in the appointment of the Claimant that the 1^st defendant wrote to the House to confirm the termination of the Claimant’s appointment in accordance with section 6(1) of the law.

THE SUBMISSION OF THE 3^RD, 4^TH and 6^TH DEFENDANTS.

60. The 3^rd, 4^th and 6^th defendant submitted lone issue for resolution, to wit:-

‘‘Whether having regard to section 6(1) of the Adamawa State House of Assembly Service Commission Law No. 5, of 202 and the evidence before the court, the termination of appointment of the claimant and subsequent appointment of the 6^th defemdant can be constitutionally faulted to warrant his claim before the court’’.

61. Abubakar Sa’ad, Esq; counsel for the 3^rd, 4^th and 6^th defendants in arguing issue one submitted that the office to which the claimant was appointed and legally removed is a creation of a statute, Adamawa State House of Assembly Service Commission Law No. 5, of 2002, which provide procedure of his appointment and removal, as per sections 4 and 6 of the Adamawa State House of assembly Service commission Law, 2002.
62. Counsel submitted that the above provisions of the law, it is undisputable that the powers to appoint and terminate the appointment of the claimant are an exclusive preserve of the 1^st and 3^rd defendants. According to counsel Section 6(1) of the Law empowers the 1^st and 3”’ Defendants to terminate the appointment of the Claimant upon securing the two third votes of the members of the 3”’ defendant.
63. Counsel contended that section 6(1) of the Adamawa State House of Assembly Commission Law No. 5, 2002 is very clear and unambiguous and that the 3^rd defendant acted within the purview of the law in approving the request of the 1^st Defendant seeking to terminate the appointment of the Claimant. Counsel urged the court to upheld the removal of the claimant in support of this contention counsel relied on the case of Abubakar V INEC (2020) t2 NWRL [Pt.1737) 37 at 54 ratio 4, where the Supreme Court held thus;

“In interpreting the provisions of the Constitution, which is the organic law of the land or the grundnorm, care must be taken to give it the real meaning which the people had in mind in adopting its provisions. The task of expounding a Constitution is different from that of construing a statute, A statute defines present rights and obligations. A Constitution by contrast is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power. It must therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must in interpreting its provisions, bear these consideration in mind. [Marwa v, Nyako (2012) 6 NWLR (Pt.1296) 199;A,-G., Bendel State V A,-G., Fed. (1982) 3 NCLR  l; lshola  v, Ajiboye(1994 ) 6NWLR (Pt.352) 506 referred to.] (Pp, 103-104,parus. F-B) “

64. It is submitted the 1^st defendant in compliance with the provision of the Commission Law send a letter dated 6^th June, 2019 (EXHIBIT DW2C) to the speaker of the 3^rd Defendant requesting for the approval to terminate the appointment of the Claimant and his other colleagues  citing Constitutional breach in his selection, screening and confirmation and members of the 3^rd defendant in the plenary of 6^th June, 2019 deliberated on the request and approved same by two third votes i.e. 17 members voted in favour of the termination of the Claimant appointment while 6 voted against the termination, in the House comprising 25 Honourable Members. On this submission counsel relied on exhibit DW2A at page 4 paragraph 1 and Exhibit DW2C,
65. Counsel submitted that the act of both the .1^st and 3^rd defendants in the termination of the Claimants’ appointment was in due Compliance with the provisions of section 6(1) of the Adamawa State House of Assembly Service Commission Law No.5 of 2002 in that regard. Counsel posited that the reason for terminating the appointment of the Claimant is clear and explicit on EXHIBIT DW2C which is a letter of the 1^st defendant to the 3^rd defendant requesting for approval to terminate the Claimants’ appointment the reason is the violation of the provision of the Constitution itself i.e. the doesn’t comply with the provision of section 14 of the Constitution of the Federal Republic of Nigeria 1999 as regard to the diversity and constituents of the State.
66. Counsel urged the court to hold that the termination of claimant’s appointment on the ground of non-compliance with the provisions of the Constitution is a valid ground/reason to sustain the termination, counsel submitted that the apex Court has succinctly interpreted the afore stated provision in the case of Maior General Kavode Oni (Rtd.) & Ors Vs Governor of Ekiti State &_ Anor (2019} 5 NWLR (Pt.1664) 7, where it was held:-

“By virtue of section 201 of the 1999 Constitution (as amended), any person holding any of the offices to which the 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, The section applies to the offices of the Chairman and members of the State Civil Service Commission, the State of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.’’ (Underlining ours for emphasis)

67. It is the submission of counsel that from the above it is undisputed that the appointment of the claimant can also be terminated for other reasons other than misconduct. Consequently, the appointment of 6^th defendant was properly done as the 3^rd defendant requested for confirmation of the appointment, after screening 6^th defendant appointment was approved by the 3^rd defendant and same communicated to the 1^st who appointed the 6^th defendant.
68. In concluding his submission counsel urged the court to dismiss the claimant’s claim as the termination of claimant’s appointment was in line with section 6(1) of the Adamawa State House of Assembly Service commission law No. 5, of 2002.

THE SUBMISSION OF THE CLAIMANT

69. The claimant formulated twin issues for determination. They are:-

1. Whether the claimant is not entitled to the grant of the reliefs sought in this suit as per the pleadings and evidence adduced in support before this Honourable Court?
2. Whether the 1^st, 2^nd and 5^th Defendants are entitled to the grant of the reliefs sought by way of their Counter-Claim as per the pleadings and evidence adduced in support before the Honourable Court?

ARGUMENT

70. Issue one: ‘’Whether the claimant is not entitled to the grant of the reliefs sought in this suit as per the pleadings and evidence adduced in support before this Honourable Court?
71. In arguing this issue T. H. Shabo, Esq; counsel for the claimant submitted that the claimant is entitled to the grant of the reliefs sought in this suit as per the pleadings and evidence adduced in support before this Honourable Court. According to counsel the Claimant herein is claiming in the main; a declaration that the termination of his appointment as Commissioner/Member 3 of the Adamawa State House of Assembly Service Commission by the 1^st Defendant via letter dated 2/8/2019 and which termination was confirmed by 3^rd Defendant on the 6/8/2019 is altogether wrongful and unlawful. See relief No. 45 A on the Statement of Facts. Reliefs Nos 45 B, C, D, E & L are ancillary to A while, F, G, H, I, J and K are alternative reliefs.
72. It is the submission of counsel that the Adamawa State House of Assembly Service Commission is one of the commissions created by the 3^rd Defendant via Adamawa State House of Assembly Service Commission Law, 2002. The appointment of Chairman and members, their tenure of office, qualification and removal are all provided for in the Law. In support of this contention counsel relied on the provisions of sections 4, 5, 6 and 8 of the Adamawa State House of Assembly Service Commission Law, 2002. The claimant who seeks a declaration that the termination of his appointment is wrongful and unlawful must therefore lead evidence in line with the above provisions of the law.
73. It is submitted that Section 4 of the Adamawa State House of Assembly Service Commission Law has exclusively conferred on 1^st defendant power to appoint Chairman and members of the Adamawa State House of Assembly Service Commission. The appointment is not subject to any confirmation by the 3^rd Defendant.
74. Counsel refers to exhibit T the Original letter of appointment of the claimant and exhibits C and B, letters written by the Governor of Adamawa State forwarding the name of the claimant as Commissioner 3 to the Speaker of the 3^rd Defendant; and the Votes and Proceedings of the 3^rd defendant of her sitting of 9/04/2019 where the said appointment was considered and approved/confirmed by the 3^rd Defendant. The appointments were made by Senator Mohammed Umar Jibrilla-the then Governor of Adamawa State as per exhibit C or D which is letter written by the then Governor to the Speaker of the 3^rd defendant seeking the confirmation of the appointment of the claimant as member 3 of the commission.
75. It is the contention of counsel that there is ample evidence before the Court that the claimant was issued appointment letter, sworn into office and had settled down for work before the interruption from office by the broadcast of the 1^st Defendant which dissolved his appointment but was successfully challenged before this Honorable Court in Suit. No. NICN/YL/10/2019 per judgment delivered on the 18/09/2019 by Hon. Justice K.D. Damulak. It is submitted that the termination of appointment by its very nature denotes that there was in existence an appointment before termination. Counsel urged the court to find and hold that the claimant was properly appointed as provided by law setting up the Commission.
76. On Removal from office, counsel refers to Section 6 (1), (2) & (3) provides for the removal from office of the claimant. It is clear from this section that there are only three options for the removal of the claimant once appointed i.e by the Governor acting upon address of the State Assembly, by the state Assembly and automatic ceasure of membership if circumstances warrant disqualification of membership of the appointee in the commission. But be it by the Governor or the State Assembly, the reasons for removal are inability to discharge the functions of his office or for misconduct. According to counsel the use of the word “shall” in Section 6 (1) is not permissive but mandatory and strict compliance.
77. It is the contention of counsel that the claimant pleaded and testified to the effect that the 1^st Defendant wrote a letter dated 2/8/2019 requesting the House approval to terminate the appointments of members of the Adamawa State House of Assembly Service Commission on grounds that due process were not followed during their selection, screening and confirmation as provided by the Constitution. Exhibit E is the letter of the Governor seeking the approval of the 3^rd Defendant to terminate the appointment of the claimant. Exhibits A or DW2A (the same) is the Votes and Proceedings of the 3^rd Defendant of 6/8/2019 wherein the House sat and considered the letter of the 1^st defendant for the termination of the appointment of the claimant. From the above Exhibit, the 3^rd Defendant read the reasons for the termination on page 3 to be lack of proper/due screening by the 3^rd Defendant and that the appointments were one sided. The 3^rd Defendant did divisive vote and concluded that “the two statutory bodies ‘Civil Service Commission and House of Assembly Service Commission’ accordingly terminated”.
78. Counsel asked the question, ‘can it be said that the termination of the appointment of the Claimant is in accordance with Section 6 of the Adamawa State House of Assembly Service Commission Law 2002? Counsel gave a capital NO answer. It is submitted that the section in unequivocal terms provides that the claimants shall be removed from office by the Governor of the 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 misconduct or by the House of Assembly but on the same reasons of inability to discharge the functions of the Office (whether arising from infirmity of mind or body or any other cause) or misconduct. In other words, the 1^st Defendant shall only remove the claimants from office for inability to discharge the functions of office or for misconduct while acting on an address supported by two-thirds majority of the 3^rd Defendant. Counsel refers to the judgment of this court in suit No. NICN/YL/10/2019 between the claimant herein against the defendants delivered on the 18/09/2019 by Hon. Justice K.D. Damulak wherein it was held that the claimant having been appointed and confirmed is entitled to a guaranteed tenure of five years removable only by reasons of inability to discharge the functions of their offices or for misconduct and that the defendants cannot validly terminate the appointment of the claimant without any allegation of misconduct or for inability to perform the function of his office.
79. It is submitted that neither the reasons provided for in Exhibit E ie that due process were not followed during their selection, screening and confirmation as provided by the Constitution nor those relied on by the 3^rd defendant ie lack of proper/due screening by the 3^rd Defendant and that the appointments were one sided have met the very restricted reasons provided for under section 6 of the Law setting up the commission ie inability to discharge the functions of office or for misconduct. Counsel urged the court to so hold. The appointment of the claimant is not regulated by the Constitution as relied upon but rather, Adamawa State House of Assembly Law 2002.
80. It is also the submission of the claimant that neither ‘selection’ nor ‘screening’ as relied on by the 1^st defendant as the reasons for termination of claimant’s appointment is provided in the Constitution of the Federal Republic of Nigeria as amended as referred to in Exhibit E. It is also not provided for in the Law setting up the commission. The Law only gave the Governor the power of appointment which evidence abound before the court as to appointment and even confirmation of the Claimant. Counsel to the 1^st set of defendant has agreed with the appointment of the claimant needed no confirmation from the 3^rd defendant even though the confirmation was sought and obtained.
81. Counsel submitted that there is no doubt that the reasons relied upon by the 1^st and 3^rd defendants to terminate the appointment of the claimant has nothing to do with inability to perform the functions of his office or for misconduct as provided for in the establishing the Commission.
82. Counsel submitted that the 1^st, 2^nd and 5^th defendants in their final written address clearly admitted that the law setting up the commission has no provision for confirmation of claimant’s appointment by the 3^rd defendant but a normal procedure for the Governor to send names of those to be given political appointments and these according to them include those to be appointed as boards members of the commissions or parastatals in the state to the House of Assembly for screening and confirmation. See paragraph 3.4 of their address. What a generalization. Assuming it is as postulated, the claimant’s appointment was forwarded to the 3^rd defendant for confirmation and same was confirmed and this much is admitted under paragraph 3.3 of their address. See also Exhibits C and B. The 1^st set of defendants also argued at paragraph 3.6 of their final address that according to the procedural practice and tradition of the House every nominee for appointment must be screened by the House before a resolution is passed. This procedural practice or tradition has not been proved before my lord. All the defendants pleaded and testified on was that the appointment of the claimant was contrary to the law. Now it is no longer law but procedural practice and tradition which have not been proved before the court. Whose fault if the claimant was not screened even if screening is a requirement of law? Is it the fault of the claimant, the Governor who even forwarded claimant’s name for confirmation or that of the House?
83. It is submitted that the defendants that allege unconstitutionality of claimant’s appointment and have by so doing filed a counter-claim before this Honourable Court seeking 4 declaratory reliefs that have the burden of prove these declaratory reliefs. This burden we submit becomes heavier where a party like the defendants seeking declaratory reliefs as it is settled law that he cannot even rely on the admission of the Respondent but has to prove his case on credible evidence. See EMENIKE – VS – PDP (2012) 2 NWLR (PT 1315) 556 AT 589 – 590, H-B. The legal burden is on the defendants to prove his counter-claim by evidence called by him without relying on evidence called by the claimant/defendant to the counter-claim. See A.G., RIVERS STATE V. A.G., BAYELSA STATE & ANOR (2012) LPELR 9336 (SC) and DUMEZ (NIG) LTD V. NWAOKHOBA (2008) 18 NWLR (PT.1119) 361 where the Supreme Court per Mohammed, JSC (as he then was) observed:

“the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavier in that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”

84. Counsel submitted that the defendants/Counter-claimants who sought 4 declaratory reliefs have the burden to prove them by their own evidence.
85. Counsel urged the court to find and hold that the termination of the appointment of the claimant is contrary to the express provision of Section 6 of the setting up the Commission and wrongful/unlawful. It is clear that in a wrongful termination of employment of this nature, the measure of damages is prima facie the amount that the appointee would have earned had the employment continued according to the contract. See;

Nigerian Produce Marketing Board – VS – Adewunmi (1972) II SC III at 117. However, the appointee cannot get both damages and reinstatement concurrently. See Kabel Metal Nig. Ltd – VS – Ativie (2002) 10 NWLR (PT 775) 250. In Shena Security Company Limited v. Afropak (Nigeria) Limited (2008)5 SCNJ 86-87 the Supreme Court held thus:

“The 2^nd situation is where the contract of service is for a fixed term. This is where the term of service is predetermined at the commencement of the contract. Notice may or may not be in the contemplation of the parties. The proposition here is that in such a contract the employee cannot be removed during the period of the term contracted except for misconduct or where the employee dies. See Egbe v. Governor Bendel State (1993) 3 SC 14. Where the contract of an employee is determined before the expiration of the term agreed the employer shall be made to pay the full salary the employee would have earned for the unexpired period of his fixed contractual term. See Swiss Nigeria Wood Industries Limited v. Bongo (1970) NCLR 423”.

1. 1. See also the unreported decision of National Industrial Court of Nigeria, Uyo Judicial Division in Suit No. NICN/UY/25/2016 between EKPUK SILAS UDOM V. HON. ATTORNEY GENERAL AND COMMISSIONER OF JUSTICE OF AKWA IBOM STATE & 1 ANOR delivered by Hon. Justice M. A. Namtari on the 17/06/2019.
2. Counsel urged the court to find and hold that the claimant is also entitled to the 2^nd relief in line with the above authorities ie a declaration that the claimant whose appointment was wrongfully/unlawfully terminated is entitled to be paid all his benefits, allowances and entitlements accruable to him as provided in his appointment letter.
3. The Claimant is seeking payment of his entitlements, allowances and or benefits as hereunder:

 

	Total claim for 5years
Claimant	N39,690,992.50

90. The basis/particulars of this entitlement is pleaded under paragraphs 35, 36, 37 and 38 of the statement of facts and evidence led on it at paragraphs 35, 36, 37 and 38 of the claimant’s evidence before the court.
91. It is the submission of counsel that in labour relations, the burden is on the claimant who claims monetary sums to prove not only the entitlement to the sums, but how he/she came by the quantum of the sums; and proof of entitlement is often by reference to an instrument or document that grants it. The claimant has specially pleaded in great details his entitlement to the amount claimed in relation to his appointment letter. See paragraphs above. In S.P.D.C LTD – VS – OKONEDO (2008) 9 NWLR (1091) 85 at 119 it was held thus:

“Where a Plaintiff pleads special damages with particularity and give some evidence of the special damages and the Defendant does not challenge or contradict the evidence given, the Plaintiff has discharged the onus of proof…”.

92. Counsel urged the court to grant this head of claim as prayed as the Defendants made no attempt at challenging or contradicting same. Counsel urged the court to grant reliefs 45 C, D & E as sought in the main.
93. The claimant also seeks by way of alternative reliefs a declaration that the termination of his appointment by the defendants without regards to the provisions of the law setting up the Commission is therefore illegal, unlawful, null and void, and of no effect whatsoever. The claimant has adduced sufficient evidence on record to show that the termination of his appointment run contrary to the express provisions of the Law. It is our argument and submission that the termination of his appointment is therefore unconstitutional, null and void ab initio and we urge my lords to so hold.
94. It is the submission of counsel that upon a finding by a court that termination of employment is illegal, unconstitutional, null and void, the necessary implication is that in the eyes of the law, claimant’s appointment was never terminated and must therefore be ordered to return to his office. This is more so that appointment with statutory backing must be terminated in the way and manner prescribed by statute. Any other manner of termination inconsistent with the relevant statute is null and void and of no effect. Counsel urged the court to so hold.
95. In concluding his submission on this issue counsel urged the court to find and hold that the claimant is entitled to the grant of the reliefs claimed in the main or the alternative reliefs if the main reliefs are not grantable.
96. Issue two: ‘Whether the 1^st, 2^nd and 5^th Defendants are entitled to the grant of the reliefs sought by way of their Counter-Claim as per the pleadings and evidence adduced in support before the Honourable Court?
97. It is submitted that the Defendants/counter-claimants are not entitled to the grant of the reliefs sought by way of counter-claim as per the pleadings and evidence adduced in support before the Court.
98. Counsel contended that the defendants/counter-claimants alleged that the appointment of claimant is unlawful, null and void and of no effect whatsoever and that due process was not followed in the appointment of the claimant. See the four declaratory reliefs sought in the counter-claim. The burden lies on them to prove these declaratory reliefs. A counter-claim constitutes a separate, independent and distinct action wherein counter-claimant needs to prove his claim against the opposite party against whom the claims in the counter-claim are made. See BALOGUN – VS – YUSUFF (2011) ALL FWLR (PT 594) 60 AT 70 D-E Ratio 7.
99. It is submitted that this burden becomes heavier where a party like the counter-claimants seeking declaratory reliefs as it is settled law that he cannot even rely on the admission of the Respondent but has to prove his case on credible evidence. See EMENIKE – VS – PDP (2012) 2 NWLR (PT 1315) 556 AT 589 – 590, H-B. The legal burden is on the defendants to prove their counter-claim by evidence called by them without relying on evidence called by the claimant/defendant to the counter-claim. See A.G., RIVERS STATE V. A.G., BAYESA STATE & ANOR (2012) LPELR 9336 (SC) and DUMEZ (NIG) LTD V. NWAOKHOBA (2008) 18 NWLR (PT.1119) 361 where the Supreme Court per Mohammed, JSC (as he then was) observed:

“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heaven in that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.” The defendants/Counter-claimants herein sought 4 declaratory reliefs and therefore have the burden to prove them by their own evidence.

100. According to counsel the counter claimants in an attempt to prove their counter-claim called one witness DW1 and tendered no Exhibit. The lone witness-DW1 in his evidence before the court constantly repeated that the claimant’s appointment was done in disregard to due process and transparency as provided by law. The law is not mentioned. See paragraphs 5, 8, 13, 14 of the evidence DW1 before the Court.
101. No evidence from the lone witness as to the provision of the Law that was disregarded what is due process in the appointment of the claimant. DW 1 could not tell the court under cross examination whether the appointment of the claimant is not subject to confirmation of the 3^rd defendant. DW1 could not also tell the court whether the appointment of claimant was confirmed. DW 1 could not also tell the court whether it is only on account of misconduct and inability to perform the functions of office that the claimant could be removed from office. He however answer that the Adamawa State House of Assembly Service Commission is a creation of the 3^rd defendant and that it was the then Governor of Adamawa State that appointed the claimant. That it is the Governor that is empowered to appoint the claimant. His evidence simply falls short of the standard required in proving declaratory reliefs and we urge my lord to so hold.
102. It is submitted that by the authorities of ADETORO – VS – UNION BANK OF NIGERIA PLC (2007) ALL FWLR (PT 390) 590 AT 618 PARAS C-D RATIO 14 and OSUNBOR – VS – OSHIOMOLE (2009) ALL FWLR (PT 463) 1366 AT 1408 PARAS F-H RATIO 16; it is trite position of law that oral evidence may not be given of the contents of a document. The document must of necessity speak for itself. This is because documentary evidence is most reliable than oral evidence. In this case the reasons provided for in Exhibit E are that due process were not followed during their selection, screening and confirmation as provided by the Constitution. For the 3^rd defendant, the reasons were lack of proper/due screening by the 3^rd Defendant and that the appointments were one sided. See EXHIBIT B or DW2A. These reasons did not meet the requirement of the very restricted reasons provided for under the Law creating the claimant’s Commission ie inability to discharge the functions of office or for misconduct. The Counter-Claimant must restrict themselves to the above reasons. We urge my lord to so hold. Reference to the Constitution in respect of the Claimant’s Commission is abnormal because the commission is neither created nor regulated by the Constitution but Adamawa State House of Assembly Service Commission Law 2002.
103. It is submitted that the Lack of proper/due screening and one sidedness of appointments relied upon by the 3^rd Defendant in EXHIBIT DW2A is also not a reason for the termination of the appointment of the claimant. Screening can at best be an internal arrangement of the 3^rd Defendant which they may decide to waive. We urge my Lord to find and hold that screening and selection are not provided in the law for the appointment of the claimant but appointment. Counsel further submitted that the counter-claimants must limit themselves to the reasons provided for in EXHIBIT E as no oral evidence will be allowed to vary, alter or add to the content of the Exhibit.
104. Counsel contended that the 1^st 2^nd and 5^th Defendants/Counter-claimants have failed woefully to discharge the burden placed on them to prove their counter-claim before the court. counsel urged the court to dismiss the Counter-claim.
105. In concluding his submission counsel urged the court to resolve the two issues raised for the determination of the Honourable Court in favour of the Claimant and to hold that termination of claimant’s appointment by the 1^st and approved/confirmed by 3^rd defendant was wrongful and unlawful. The court should also grant to the claimant his monetary reliefs and dismiss the counter-claim.

COURT’S DECOSION:

106. I have carefully and painstakingly considered the processes filed in this suit, as well as the written and oral submission of counsel. The facts of this case are not much in dispute, what seems to be the area of differences between the parties is the interpretation given to the provisions of the law applicable to the facts of the case.
107. Before dealing with the issues calling for resolution, I must point out that counsel for the 1^st, 2^nd and 5^th defendants in the final written address of the 1^st, 2^nd and 5^th defendants has heavily relied on unreported decision of the court of appeal Abuja Division, the certified true copies of which was never made available to the court, this is contrary to Order 45 Rule 3(1) of the NICN Rules 2017. By the rules of this court counsel in Order 45 Rule 3(2) of the NICN Rules 2017, failure to comply with Rules 2 and 3(1) of Order 45 may render the written address incompetent. And by Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor (2019) 5 NWLR (PT.1664) 1(SC), Amina Augie, JSC; has this to say on citing unreported cases before a court of law:-

It is an elementary principle, very elementary, that Counsel who want the Court to make use of authorities cited in Court must provide the name of Parties, the year the case was decided, and where the case is reported, name of the Law Report, the year, volume and page must be cited. But if the said case is unreported, Counsel must provide the Court with a certified true copy of the Judgment sought to be relied upon - see Chidoka & anor v. First City Finance Co. Ltd [2013] 5 NWLR (Pt. 1344) 144 and Ugo-Ngadi v. FRN [2018] LPELR-43903(SC), wherein Galinje, JSC stated ‘ Where counsel cites a case that has not been reported, he owes the court a duty to produce a copy of the judgment if he want the court to to rely on such authority. Where copies of judgments are not produced the court will have nothing to rely upon.’’

108. On the above decision of the apex court I hereby discountenanced the unreported decision of the Court of Appeal which has not been made available to the court.
109. It is apparent from exhibits A, E, DW2A and DW2B, that the termination of appointment of the claimant which is the subject of the present suit, took place while suit No. NICN/YL/10/2019 was pending before this court. In fact the said suit has undergone the process of hearing and judgment had been reserved to be delivered on 18/9/2019, when the claimant’s appointment was terminated by the defendants. The judgment of the court in suit No. NICN/YL/10/2019 was delivered on 18/9/2019, wherein the reliefs sought by the claimant were granted. See the Certified true Copy of the said judgment tendered and admitted in evidence as exhibit ‘U’.
110. To my mind the question that should first and foremost agitate the mind of the parties concerned in this case is what is the effect of the action of the defendants in terminating the claimant’s appointment as Commissioner iii with the Adamawa State House of Assembly Service Commission, while suit No. NICN/YL/10/2019, was pending before the court.
111. The claimant in this suit is seeking for two sets of reliefs. The first set of reliefs are those in A – E. while the second set of reliefs are those in F – L.
112. The reliefs in F – L are in the alternative to reliefs A - E. this means that reliefs A-E are the main reliefs being sought by the claimant. It is trite law that where a claimant seeks for reliefs in the alternative, the court will consider the main claim/reliefs first, if, at the end the main claim/reliefs are found to have merit the court will grant them. The claim/reliefs in the alternative can only be considered if the main claim/reliefs fail that is when the alternative claim will be considered by the court.
113. In the case at hand, the main claim of the claimant are the reliefs enumerated as A – E. in these reliefs the claimant is seeking for declaration that the termination of his appointment as Commissioner/Member 3 of the Adamawa State House of Assembly Service Commission by the 1^st defendant via letter dated 2/8/2019 and which termination was confirmed by the 3^rd defendant on the 6/8/2019 is altogether wrongful and unlawful. He is also seeking for a declaration that following the unlawful/wrongful termination of the claimant’s appointment the claimant is entitled be paid all benefits allowances and entitlements accruable to him as provided in claimant’s appointment letter and for the period of 5 years, which amount to total sum of N39,690,992.50 (Thirty Nine Million Six Hundred and Ninety Thousand Nine Hundred and Ninety Two Naira Fifty Kobo). The claimant is also seeking for payment of 15% on all accruable entitlements accruable to the claimant as Solicitors Professional Fees in the sum of N5,953,648.9 and N20,000,ooo.oo as exemplary/punitive damages against the defendants.
114. The 1^st 2^nd and 5^th defendants’ position, is that the appointment of the claimant was made two months to the expiration of the tenure of office of the former Governor of Adamawa State. The nomination of the claimant for appointment as Commission to the State Assembly was sent to the House of Assembly on the 9^th April, 2019, the House sat on the same day, voted and passed its resolution and on the 10^th April 2019, the resolution was said to be communicated to the Governor.
115. The 1^st 2^nd and 5^th defendants submitted that though the Adamawa State House of Assembly Service Commission Law did not make provision for sending of name of nominee to the House, it was normal procedure that is usually followed for appointment into Commissions and Board members. It was also argued that the appointment was hastily and desperately done without due process as the claimant was not screened, thus why the appointment was suspended and subsequently terminated. It is also argued that there are irregularities in the taking of oath of office, as the documents before the court shows claimant has accepted his appointment before taking of oath of office.
116. It is the submission of counsel that the appointment of the Claimant was characterized with illegality, lack of transparency and due process and to resolve issue one in favour of the 1^st, 2^nd and 5^th defendants and to also hold that the termination of the appointment of the Claimant by the 1^st defendant was legal and valid, as it was done in accordance with the provisions of section 6(1) of the Adamawa State House of Assembly Service Commission law.
117. For the 3^rd 4^th and 6^th defendants, vide section 6(1) the power to appointment and terminate appointment of the claimant is within the exclusive preserve of the 1^st and 3^rd defendant, upon securing the two third votes of the members of the 3^rd defendant. The appointment of claimant was validly terminated for violation of the provision of section 14 of the constitution due to not taking account of diversity in the appointment.
118. The claimant maintained that he is entitled to the reliefs being sought from the court and that the 1^st 2^nd and 5^th defendants are not entitled to the counter-claim. To the claimant vide the combine effect of exhibits A, B, C, D and T, he was validly appointed as a Commissioner 3 of the Adamawa state house of Assembly Service commission. According to claimant upon his appointment was sworn in and had settled down for work before his appointment was interrupted and dissolved via broadcast by the 1^st defendant. The action of the 1^st defendant in dissolving the appointment of the claimant via broadcast was challenged before this court in suit No. NICN/ABJ/YL/10/2019, where vide its judgment delivered on 18/9/2019, the action of the 1^st defendant was reversed and the validity of the claimant’s appointment affirmed.
119. According to the claimant exhibits E, A or DW2A, the termination of appointment was not in line with section 6 of the Adamawa State House of Assembly Service Commission law 2002, as there was no two-third address majority of house of assembly praying for his removal. Also the reason given for termination did not tally with reason given in section 6. As neither selection nor screening was provided for in the Constitution of the Federal Republic of Nigeria 1999, as amended, as referred to by exhibit E. it is also not provided in the law setting up the commission.
120. I have carefully perused exhibit T the original letter of appointment of the claimant and I am satisfied that exhibit T has established that the claimant was appointed as Commissioner iii for Adamawa State House of Assembly Service Commission by the former Governor of Adamawa state in the exercise of the powers conferred on him by section 4 of the Adamawa state House of Assembly Service Commission Law.
121. Exhibit U clearly shows that vide suit No. NICN/YL/10/2019, between Hon. Ngyamanu Shadrack Vs. 1. The Governor of Adamawa State, 2. Attorney General of Adamawa State and 3. Adamawa State House of Assembly, was instituted by the claimant before this court to challenge the claimant’s suspension or dissolution of his membership of the Adamawa State House of Assembly Service Commission. The reliefs sought before the court in suit No. NICN/YL/10/2019, are hereto reproduced for ease of reference. They are:-

1. A declaration that the claimant as Commissioner or member of the Adamawa State House of Assembly Service Commission, having been so appointed by the then Governor of Adamawa State upon confirmation by the Adamawa State House of Assembly, i.e entitled to a guaranteed tenure of five years removable by the 1^st or 2^nd respondents only by reasons of inability to discharge the functions of his office or by misconduct.
2. A declaration that by the clear provisions of section 4(5) and 6(1)  (2) of the Adamawa State House of Assembly Service Commission Law 2002, the Respondents cannot validly dissolve, suspend, remove or terminate the appointment of the claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office.
3. A declaration that the purported dissolution and or suspension of the appointment of the claimant as Commissioner or member of Adamawa State House of Assembly Service Commission without any allegation of misconduct or for inability to discharge the functions of his office is ultra vires the powers of the 1^st respondent and therefore, unconstitutional, null and void and of no effect whatsoever.
4. An order setting aside the purported dissolution and or suspension of the appointment of the claimant as Commissioner or member of Adamawa State House of Assembly Service Commission as null and void and of no effect and a further order of perpetual injunction restraining respondents jointly and severally from interfering with the claimants’ performance of the duties of his office.
5. An order restraining the 1^st respondent or any one acting through him from appointing any other person or commissioner or member of the Adamawa State House of Assembly Service Commissioner whether in acting or in permanent capacity while the appointment of the claimant is subsisting.
6. An order directing the 1^st and 2^nd respondents to pay the claimant his salaries and or arrears of salaries and other entitlements effective from the month of April when he assumed office.
7. Any other or better orders the court may deem fit to male in the circumstances of this suit.

122. On 18/8/2019, the court in its judgment exhibit ‘U’ granted the above reliefs as claimed.
123. On 2/8/2019 the 1^st defendant vide exhibit ‘E’ requested the 3^rd defendant to approve termination of claimant’s appointment and vide exhibits A or DW2A, DW2B, the 3^rd defendant concluded deliberation and approved the 1^st defendant’s request in exhibit ‘E’ thereby terminating the claimant’s appointment as a Commissioner iii with the Adamawa state House of Assembly Service Commission. As at the date of exhibits A, DW2A and DW2B, both the 1^st and 3^rd defendants were duly aware of the pendency of suit No. NICN/YL/10/2019 before this court. There is also no disputing the fact that the 1^st and 3^rd defendants fully participated in the proceedings of this court in suit No. NICN/YL/10/2019. See exhibit U.
124. It is clear to me that the claimant’s first set of claim in A – E is aimed at restoring the parties back to status quo ante bellem. Restoration, generally presupposes that something which was previously put in a particular place or position was displaced and eventually restored to its former position. See KUBOUR V DICKSON (2012) LPELR-9817(SC).
125. Restorative order of court by its very nature is designed to judicially instill discipline on an erring patty in order for the court to maintain, restore and preserve its dignity and respect. The court exercises this power, inter alia, to undo what has been done by the erring party for the party’s highhandedness and disrespecting the court processes pending the outcome of the court’s decision. This type of order is granted irrespective of what the court will decide or has decided on the merit.
126. The inherent power of the court under section 6(6) of the Constitution of the federal Republic of Nigeria, 1999, (as amended), has clothed this court with requisite power to issue restorative order. As pointed out earlier this kind of order is granted to enable the court protect itself from unwarranted interference, and secondly, to sustain its dignity in order to promote fair dispensation of justice. See ERISI V IDIKA (1987) 4 NWLR (PT.66) 503, ADIGUN V A.G. OYO STATE (1987) 2 NWLR (PT.56) 197. The power of court to grant restorative order is designed for the maintenance of law and order, dignity and integrity of the court, unless court exercises disciplinary jurisdiction in appropriate circumstances, it will lose its respect in the judicial process. The institution of the court which the law has placed in the exalted and sacred position, surrounded by all aura of legalism and sanctity, will be reduced to a toothless dog which can bark but cannot bite.
127. It is trite law that once parties have submitted their dispute before the court for adjudication, they are duty bound not to do anything that will in one way or the other jeopardize the outcome of the suit pending before the court. The 1^st defendant’s action in terminating the claimant’s appointment while suit No. NICN/YL/10/2019 is pending before this court clearly shows how the process of this court was disrespected. This kind of conduct is highly condemnable.
128. The defendants are under an obligation to respect the pending court processes. This position is irrespective of what the defendants felt about the suit before the court. The parties in a suit are under an obligation to respect processes of the court. The Supreme Court has made it very clear in Jombo v. PEFMB [2005] 14 NWLR (Pt. 945) 443 that the act of an employer in dismissing an employee from office during the pendency of an action is contemptuous of the judiciary, which has been seized with the determination of civil rights under the Constitution. The 1^st defendant rushing to the 3^rd defendant to approve request for terminating the appointment of the claimant was clearly against the spirit of the constitution and the independence of the three arms of government. The action of the defendants in terminating the claimant’s employment when suit No. NICN/YL/10/2019 was pending as at 7^th August 2019 is clearly in disobedience of the court processes before the court and the conduct contemptuous of the process of this court. In the circumstances I hereby nullify the termination of the claimant’s appointment due to the defendants’ disregard of the pending sui No. NICN/YL/10/2019 pending before the court as at 7^th August 2019, the termination was without vires.
129. The foregoing, finding is enough to dispose of this suit. However, I shall still go ahead to determine whether the claimant has also establish entitlement to the relief being sought before the court.
130. The main relief being sought is a declaration that the termination of appointment of the claimant is unlawful, wrongful null and void and the claimant is entitled to payment of his salaries and other entitlement as per his letter of appointment exhibit T.
131. The claimant insisted that his appointment was properly made in line with section 4 of the Adamawa State House of Assembly Service Commission. And that the termination of his appointment by the 1^st and 3^rd defendant was wrongful and in breach of the law.
132. The defendants on their part have argued that the termination of the appointment of the claimant was done based on constitutional breaches regarding selection, screening and confirmation. It was also the position of the defendants that the termination of claimant’s appointment was done in line with the provisions of section 6 of the Adamawa State House of Assembly Service Commission, law 2002.
133. I have carefully and painstakingly, perused the provisions of section 4 and 6 of the Adamawa state House of Assembly service Commission Law 2002, which are the provisions relevant to the determination of the issues calling for resolution in this case.
134. It is trite law that in employment matters whether with statutory flavor or at common law a party challenging wrongfulness of termination of his appointment has a bounden duty of establishing that his employment and conditions of service as well as established how the defendant breached the conditions of service. See Emokpae V University of Benin (2002) 17 NWLR (Pt.795); University of Calabar V Essien (1996) LPELR-3416(SC); Organ & Ors. V  Nigeria Liquefied Natural Gas Limited 7 Anor. 92013) LPELR-20942(SC).
135. The defendants in terminating the appointment have stated as per exhibit E, that due process was not followed during selection, screening and confirmation as per requirements of the Constitution of the Federal Republic of Nigeria, 1999, as amended. In exhibit A & DW2A, the reasons given for termination is that the claimant was not properly/dully screened by the House of Assembly and the appointment was said to have been one sided.
136. It is the contention of the claimant that the reasons adduced for terminating his appointment did not conform with statutory provisions as contained in section 6(1) of the Adamawa state house of Assembly Service Commission Law 2002. While the claimants argued to the contrary and insisted that the termination was done in compliance with the provisions of section 6 of the Adamawa State House of assembly Service Commission Law 2002. And insisted that the claimant is not entitled to any of the reliefs being sought from the court.
137. The cumulative effect of exhibit T and the provisions of sections 4 and 6 of the Adamawa state House of Assembly Service Commission Law is that the employment of claimant and removal has been provided under the provision of the Adamawa State House of Assembly Service Commission. Therefore, the employment of the claimant is one protected by statute or it enjoyed statutory flavor. This means for any removal or termination of appointment to be validly made, there must be strict compliance with the provisions of the law. See  Shitta-Bey V The Federal Public Service Commission (1981) 1 SC 40; Olaniyan V Unilag (1985) 2 NWLR (Pt.9) 599; Udo V Newspaper Corporation (2001) 14 NWLR (Pt.732) 116; CBN V Igwilo (2012) 3 NLLR 1 @ 21 paras C-D. Eperaku V Unilag
138. In order to properly consider the case of the parties, the provisions of section 6 of the Adamawa state House of Assembly Service Commission law needs to be considered. Section 6 (1), (2) & (3) provides for the removal from office of the claimant. It provides:

(1)-“The Chairman or any member of the Commission shall be removed from that office by the Governor acting upon an address by two-thirds majority of the state Assembly 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 misconduct”.

1. 2. (2)-“Notwithstanding the provisions of subsection (1) of this section, the Chairman or any member of the Commission shall be removed from the office by the state Assembly for inability to discharge the functions of his office or for misconduct.”
   3. (3)-“A member of the Commission shall cease to be a member if any circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified for appointment as such a member”.
2. The above provisions of Section 6 (1), (2) & (3) of the Adamawa State house of assembly Service Commission, Law 2002, is clear and unambiguous it made ample provisions for removal of Chairman or any member of the Commission, this is a pointer that the appointment of the claimant is one protected by statute. The law is well settled that for an employment to be protected by statute or what is termed employment with statutory flavor, such employment must be provided for by a statute as well as the procedure for disciplinary action or way for removal. See Bamgboye V University of Ilorin (2009) LPELR-, Idonoboye-Obu v NNPC, Comptroller general of Customs V Gusau (2017) LPELR(SC).
3. The appointment of the claimant having been one protected by statute must be determined in accordance with the procedure provided by the applicable statute. Any deviation from the letters and spirit of the law will render such removal null and void.
4. I have carefully examined the provision of section 6 reproduced above. It is clear to me that the law has provided three instances in which the defendants can remove the claimant from office. The first instance is where there is an address by two-third majority of members of the House of assembly praying for the removal of the claimant, if the 1^st defendant remove or terminate the appointment of the claimant based on the address by three-third of the members of the Adamawa State house of Assembly, such removal or termination will be valid in law. However, in the present case there is no evidence adduced by the defendants to show that there was an address by two-third majority of members of the House of Assembly praying for removal of the claimant. Exhibits A, DW2A and DW2B, cannot qualify to be address by two-third majority. These exhibits depicted request for approval from the Adamawa State House of Assembly for termination of appointment of the claimant, which is not the same thing with an address praying for removal or termination of appointment of the claimant. The process was initiated by the 1^st defendant who is seeking approval of the 3^rd defendant to terminate appointment of the clamant.
5. The second instance under section 6(2) in which termination can validly be made is by State Assembly for inability to discharge the functions of his office or for misconduct. In the case at hand there are no allegations of inability on part of the claimant or misconduct levelled against the claimant. The reason given for termination was non-compliance with the Constitution. Though in the written address it was argued that section 14 of the Constitution was violated, there are however, no facts in the pleading to support the said allegation, as there was nothing to indicate that the appointees were from the same area or from the same part of the state or are of same tribe which would have made their appointments one sided as being claimed by the defendants. There is nothing before the court to afford the court opportunity of discovering if there is really breach of section 14 of the Constitution. The provisions of section14 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, cannot be invoked in vacuum. The 1^st defendant having given the reason for termination to be breach of Constitutional breaches had the onus of establishing the said breaches. Having failed to prove breach of section 14 or any provision of the Constitution, the termination of claimant’s appointment on this score is illegal null and void.
6. The third and last instances in which termination can be rendered valid is as provided in section 6(3) of the Adamawa State House of Assembly Service commission is in a situation where it was established that circumstances arise that, if the claimant was not a member of the commission, those circumstances would have cause him to be disqualified for appointment as such a member in this instance he will ceased to be a member. The defendant never proyed that circumstances of the nature have arisen to show that if claimant was not a member he would not have qualified for the post to which he was appointed. Therefore, the third instance does not apply to this case.
7. All I have been saying above is that the termination of the claimant’s appointment was done in flagrant disregard of the provisions of section 6 of the Adamawa State House of Assembly Service Commission Law 2002. The termination of claimant’s appointment is therefore null and void and of no effect whatsoever.
8. Apart from the alleged breach of constitution in the appointment of the claimant which this court found not to have been established, there is also the assertion that the claimant did not undergo selection and screening by the House of Assembly. I have carefully perused the entire provisions of the Adamawa state House of Assembly Service Commission Law 2002, under which the appointment of the claimant was made, there was no requirement for submission of name of the claimant to the 3^rd defendant for screening. The provision of section 4 of the law is very clear and unambiguous on the person or authority to make appointment of Commissioner iii, which is the 1^st defendant and vide exhibit ‘T’ the 1^st defendant appointed the claimant which by section 4 is to serve for 5 years.
9. There is also reliance by the defendants on the case of Oni V The Governor of Ekiti State (supra). However, the facts in Oni’s case and the case at hand are not on all fours. In the case of Oni the appointment was made at the pleasure of the Governor while the provision of the constitution requires the appointment to be made subject to resolution of the House of Assembly. While in the case at hand section 4 of the Adamawa State House of Assembly Service Commission Law which donated power of appointment to the Governor does not require resolution or confirmation of the appointment by the House of Assembly.
10. The Supreme Court in the case of Oni (supra) while interpreting the provisions of section 201 of the Constitution, which is impari materia with the provisions of section 6 of the Adamawa State House of Assembly Service Commission Law 2002, stated that for removal to be valid pursuant to the provision, the Governor must act on address by two-third majority of the members of the House praying for the removal. In the case at hand there is no such address by the house. The removal is based on request by the Governor to the speaker of the house for approval to be given for termination of the claimant’s appointment. Therefore, the action of the Governor and the House is in breach of the statutory provision on removal of the claimant.
11. The law is trite that where statute has provided procedure of doing things it is only such procedure that is allowed to be followed any deviation from the laid down procedure will invalidate the action taken in breach. In other words when a law or statute has laid down a procedure of doing a thing, compliance with that procedure is a condition precedent to doing that thing. In the instant case, the House of assembly by entertaining request for approval of termination of claimant’s appointment was not performing any statutory or constitutional duty in so far as section 6 of the Adamawa State House of Assembly Service Commission Law 2002 is concerned. The House of Assembly cannot under any guise override statutory provisions in purported exercise of any function or powers The House of Assembly of a State has no power to override by its action the conditions as laid down by statute. In the instant case, the 1^st and 3^rd defendants must act within the ambit of the law for their action to be protected by law in termination of appointment made pursuant to section 4, of house of Assembly Service Commission Law 2002. See A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1, Adeleke v. O.S.H.A. (2006) 16 NWLR (Pt. 1006) 608. Therefore, where a statute provides a particular method of performing a duty regulated by the statute that method, and no other, must have to be adopted. See C.C.B. (Nig.) Plc v. A-G., Anambra State (1992) 8 NWLR (Pt.261) 528, Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212, Okereke v. Yar Adua (2008) 12 NWLR (Pt. 1100) 95.
12. It is also to be made clear that there is no duty or obligation imposed by law on the claimant to adduce evidence of screening for the applicant’s appointment to be valid. The law is very clear the responsibility for selection and ensuring that a suitably qualified person is selected and appointed to the position of Commissioner iii, rest squarely on the shoulders of the 1^st defendant on whom the power of making appointment is vested by the law. The law did not impose or assign any role to the 3^rd defendant regarding appointment to be made pursuant to section 4 of the Adamawa State House of Assembly Service Commission Law. The issuance of exhibit T by 1^st defendant to the claimant is an indication that proper checks and all necessary screening have been done to ensure that suitable candidate is appointed.
13. The interpretation given to the unambiguous provision of section 11 of the Interpretation Act by the defendants to the effect that the authority that has power to confirm or affirm the termination of appointment also has power to affirm or confirm appointment does not represent the correct position of the law, the submission was based on gross misconception of the law. The proper intendment of section 11 of the Interpretation Act is to the effect that he who has the power to appoint has the power to terminate or suspend. In the case at hand the power to appoint is exclusively vested in the 1^st defendant. The 3^rd defendant has no role to play in that respect. The role of the 3^rd defendant is only in respect of termination or removal and this power has to be exercise in conformity with the law.
14. The defendants have also made heavy whether on the appointment of the claimant being ab initio null and void on the ground that the claimant assume duty before taking oath of office and letter of appointment being issued before taking oath of office and writing acceptance of appointment before taking of oath.
15. The defendants have not referred this court to any provision of the Constitution that required the claimant to take oath of office fist before issuance of letter of appointment and acceptance of same. What is clear from the Adamawa State House of Assembly Service Commission Law, is that the claimant is required to subscribe or take oath of office for assumption of duty. It must be noted that there is nothing unusual for a letter of appointment to be issued and same accepted before the appointee takes oath of office. The date of resumption is the date when oath of office is subscribed to and not the date of letter of appointment or date of acceptance. It is the actual date of taking of oath of office that is the date of assumption of duty. In fact oath of office cannot be administered or subscribed before issuance of letter of appointment. It is the letter of appointment that will be the basis of taking of oath of office. The defendants miss the point by insisting on taking of oath of office first before issuance of letter of appointment and acceptance of same, this position if accepted will amount to towing of unusual path.
16. Amongst the documents attached to the general form of complaint are the documents used by the claimant to subscribe to oath of office. It is clear from these documents that the claimant took oath of office before the deputy Governor of Adamawa State on 15/5/2019. This was confirmed by a letter from the Secretary of the Adamawa State House of Assembly intimating the 1^st defendant of assumption of duty by the claimant. These pieces of evidence though not tendered in evidence, the court has power to make use of the documents in the case file to assist the court in coming to a just decision.
17. Oath taking is what determined date of assumption of duty and not date of letter of appointment or date of letter of acceptance. Therefore, there is not desperation on part of the claimant regarding his appointment and assumption of office, as being trotted by the defendants. The defendants’ submission that oath taking should precede issuance of letter of appointment is certainly on wrong premise.
18. It was also the case of the defendants that the claimant was not removed based on inability to discharge functions of his office or exhibiting misconduct, rather, the question is he was not validly appointed due to lack of screening by the State House of Assembly. However, it has been shown that the removal of claimant did not conform to the extant law on removal; therefore, the removal was wrongful.
19. Having found that the claimant’s appointment was not properly terminated and having found the termination to be null and void, the alternative claim of the claimant will not be considered. As the law is well settled that in an action where an alternative claim is made in addition to the main or principal claim, it is only where the main claim has not been granted that the consideration and the granting of the alternative claim can arise, both the main claim and the alternative claim cannot at the same time be granted. See UBA Plc V  Mustapha (2003) LPELR (CA), Government of Akwa Ibom State & Ors V Rabelat Nig. Ltd (2006) LPELR-9842 (CA). The philosophy behind the rule on alternative claim/relief is that one cannot be expected to obtain two claims that are alternate to each other. One can only obtain one or the other, not both at the same time.
20. I shall now consider the monetary claim of the claimant. There is doubt that the claimant’s appointment by the provision of section 4 of the Adamawa state House of Assembly Service Commission Law is for a term of five years. This means the claimant’s appointment is for a fixed terms. This means where there was wrongful termination as in this case the claimant will be entitled to be paid his salaries for the period of the tenure and any other proved entitlement. See TSEMWAN & ORS V. GOVERNOR OF PLATEAU STATE & ANOR (2012) LPELR-7922(CA), THE GOVERNOR OF KWARA STATE & ANOR V. OJIBARA & ORS (2006) LPELR-3178(SC)
21. The defendants have contended that the claimant is not entitled to any compensation or payment of salaries and allowances as he had not worked for the defendants. It was further argued that the claimant has not been paid by the administration that employed him, which suggest he had not worked.
22. The argument of the defendants seems not to have the support of the facts put forward before the court. The claimant has insisted he assumed duties and performing function of his office when the 1^st defendant eight days to assumption of office as Governor of Adamawa State in a broadcast suspended and dissolved the appointment of the claim. This fact has not been denied by the defendants, they are at ad idem with the claimant that the 1^st defendant via a broadcast suspended the claimant from office. This clearly established that the claimant was suspended from performing the function of his office. Suspension is usually a prelude to dismissal from an employment. It is a state o affairs which exists while there is a contract in force between the employer and the employee. It is neither termination nor dismissal of the employee. It only operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. See Longe V FBN Plc (2010) LPELR-1793(SC) the defendants having admitted suspending claimant and subsequently terminating his appointment cannot be head seriously to contend that claimant has not assumed duty. T is because the claimant has assumed duty thus why he was suspended.
23. To further support that the claimant had assumed duty before he was suspended by the broadcast, reference is made to the record of the court, wherein a letter was attached to the general form of complaint commencing this suit, wherein the Secretary of the Adamawa State House of Assembly Service Commission wrote to the 1^st defendant intimating him of the resumption of duty by the claimant.
24. The letter written by the Secretary of the 3^rd defendant is part of the documents in the case file which forms record of the court. This court can make use of the documents in the record of the court to enable the court do substantial justice between the parties. See PDP V Ezeonwuka & Ors (2017) LPELR-42563(SC), Fumodoh V Aboro (1991) 9 NWR (Pt.214) 210@ 229 Texaco Panama Inc. V SPDC Ltd (2002) 5 NWLR (Pt.759) 209 @ 234, Per Kalgo, JSC (as he then was).
25. Since the appointment of the claimant is for a fixed term of five years, I shall in line with the decision in the case of TSEMWAN & ORS V. GOVERNOR OF PLATEAU STATE & ANOR (2012) LPELR-7922(CA) order the defendants to pay the claimant his salaries and allowances for the period of five years which is the duration of his appointment.
26. In view of the foregoing, the defendants are hereby ordered to within 60 days from the date of this judgment pay the claimant the sum of N39, 690,992.50 (Thirty Nine Million Six hundred and Ninety Thousand Nine Hundred and Ninety Two Naira, Fifty Kobo), being his entitlement as per his letter of appointment.
27. The claim for exemplary and punitive damage the claimant has not adduced evidence in roof of such payment like-wise the claim on Solicitors Fess there is no evidence that the claimant has undertaken such expenditure to warrant granting of the relief.
28. Having dispose of the claimant’s case, I shall now turn to the counter-clam.
29. I have in the earlier part of this judgment reproduced the reliefs being sought by the defendants/counter claimants.
30. It is settled law that a counter-claim is a cross-action with separate pleadings, judgment and costs, and not merely a defence to the claim before the court. It is an independent action that is not part of the original action, although for convenience they are tried together. In such trials, parties in the original action swap places - the defendant assumes the position of claimant, and the claimant assumes that of defendant. Thus, a counter-claim is a weapon of defence that allows a defendant to enforce a claim against the claimant, as effectually as an independent action. But a counter-claim cannot be inconsistent with the claimant’s claim in the sense that it cannot erect a totally different case from that of the claimant. See Okonkwo v. C.C.B. (Nig.) Plc (2003) 8 NWLR (Pt.822) 347, Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29: S.C.
31. A counter-claim being a separate and independent clam by itself can only succeed, by discharging burden of proof like the onus a claimant has in proof of his case by the strength of his case by adducing cogent and compelling evidence. The law remains that he who asserts or claims a relief must prove it by credible admissible evidence. The burden is on a Counter-Claimant to prove his counter claim. See Suffolk Pet. Services Ltd. v. Adnan Mansor (Nig.) Ltd (2019) 2 NWLR (Pt.1655) 1.
32. In the instant case the defendants counter-claimants are praying for declaratory reliefs. Therefore they have the bounden duty of proving entitlement to the declarations on the strength of their case and not on the weakness the defense. There is no dispute that the claimant was appointed by the former Governor as per exhibit T. by section 4 of the Adamawa State House of Assembly Service Commission Law, the appointment is to last for a period of five years. However, with the change of government the 1^st defendant terminated the appointment of the claimant/defendant to counter claim on the ground that due process was not followed in selection, screening and confirmation. However, section 4 of the Law based on which the claimant/defendant to counter claim was appointed never made provisions for selection, screening or confirmation of the House of Assembly. In the circumstance the appointment of the claimant/defendant to counter-claim as per exhibit T was properly done.
33. Furthermore, the removal or termination of appointment must conform with section 6 of the Adamawa State House of Assembly Service Commission Law.  I have earlier found that the termination of appointment of the claimant/defendant to counter-claim to be wrongful. Therefore, the counter-claim is lacking in strength and also the termination of appointment of the claimant/defendant to counter-claim was not done in line with section 6 of the Adamawa state house of Assembly Service Commission Law, as there was no allegation of claimant not been able to discharge functions of his office or he has committed misconduct. In the circumstances, the defendants/counter-claimants are not entitled to declarations being sought. See Olubodun v. Lawal (2008) 17, African Songs Ltd. v. Adegeye (2019) 2 NWLR (Pt. 1656) 335: C.A.
34. From the foregoing, it is my finding that the counter-claim fails for lack of proof same is hereby dismissed.
35. For avoidance of doubt, the claimant is entitled to payment of the sum of N39, 690,992.50 (Thirty Nine Million Six hundred and Ninety Thousand Nine Hundred and Ninety Two Naira, Fifty Kobo), being payment for salaries and other entitlements for the duration of the tenure of his office.
36. The defendants are hereby ordered to pay the claimant the sum of N39, 690,992.50(Thirty Nine Million Six hundred and Ninety Thousand Nine Hundred and Ninety Two Naira, Fifty Kobo), within 60 days from the date of this judgment falling which 10% interest per annum shall apply until the judgment sum is liquidated.
37. Judgment entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

T. H. Shabo, Esq; for the claimant

I. Muhammad, Esq; Senior State Counsel 1, Ministry of Justice Adamawa State, for the 1^st, 2^nd and 5^th defendants

T. J. Ojo, Esq; for the 3^rd, 4^th and 6^th defendants