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The claimant commenced this action by an originating summons dated 8th February, 2013 filed the same date, seeking for the determination of the following questions, to wit. (1) Whether by virtue of the provision of S.10(2), (3) and (4) of the Nigerian Communications Act, 2003, the purported removal of the claimant as an Executive Commissioner of the Nigerian Communications Commission by the 1st Defendant via a letter dated 29th November, 2012 is not illegal, un constitutional, Ultra Vires, null and void and of no effect whatsoever. (2) Whether having regard to the provisions of S.10(2), (3) and (4) of the Nigerian Communications Act, 2003, the fundamental right to fair hearing of the claimant was not breached having not been served with the statutory notice of the intention of the first Defendant to remove him from office and the reasons thereof, and afforded the statutory opportunity to make written submissions thereto prior to his removal from office . (3) Whether having regard to the provisions of Section 8 and 10 of the Nigerian Communications Act, 2003, the appointment of the claimant by the 1st defendant does not have legal status as to invest this honourable Court with the power to order the reinstatement of the claimant and payment of his salaries and allowances since November, 2012. The RELIEFS SOUGHT BY THE CLAIMNANT 1 A declaration that the purported removal of the claimant as an Executive Commissioner of the Nigerian Communications Commission by the 1st defendant via a letter dated November 26, 2012 is illegal, unconditional, ultra vires, null and void and of no effect whatsoever as it violates the provisions of Section 10(2),(3) and (4) of the Nigerian Communications Act, 2003. 2 A declaration that the failure or refusal of the claimant with the statutory notice of intention to remove him from office and the reasons thereof and afford him the opportunity to make written submissions thereto prior to his removal from office is illegal, null and void as it violates the claimant’s right to fair hearing guaranteed by Section 10(2),(3) and (4) of the Nigerian Communications Act, 2003. 3 A MANDATORY ORDER OF Court directing the 1st defendant herein to reinstate the claimant as an Executive Commissioner of the Nigerian Communication Commission and pay him his accrued salaries, benefits and allowances since November 26, 2012 till judgment is delivered in this suit. The Originating Summons is supported by a 24 paragraph affidavit deposed to by the claimant and supported by a 52 paragraph written address. However, by a motion on notice dated 18th June 2013 and filed on the 21st of June 2013, the Claimant/Applicant sought the leave of Court to effect an amendment of the Originating Summons before the Court. The motion also sought for an order of Court deeming the annexed amended originating summons as properly filed and served. On the 17th of October, 2013 the amended originating summons was deemed by this Court as being properly filed and served on the defendants after Mr. Deji Morakinyo had moved the said motion for leave to amend the said originating summons, Mr. P.C. Mbam for the 1st and 2nd defendants not opposing; he having also informed the Court of their preliminary objection in which they were challenging the Court’s jurisdiction to entertain the suit because of the mode of commencement of action. On the 23rd of October 2013, when the matter came up for hearing, the Court allowed counsel in the matter to adopt their addresses and replies respectively with regard to the originating summons and the preliminary objection of the defendants. This the Court did in the belief that the ruling that would follow would go as far as the facts of the merit of the case would require. Mr. P.C. Mbam for the defendants filed a preliminary objection dated 5th August 2013. It is this preliminary objection and the issues it raises that this Court must first look into for determination as it urges the Court to strike out the suit for incompetence and the grounds for it is that the Court lacks jurisdiction to hear the claim as it was commenced by originating summons instead of a writ of summons. In the amended originating summons the claimant formulated the following questions for determination. 1. Whether by virtue of the provisions of s.10(2),(3) and (4) of the Nigerian Communications Act, 2003, the purported removal of the claimant as an Executive Commissioner by the 1st defendant via letter dated November 26, 2012 is not illegal unconstitutional, Ultra vires, null and void and of no effect whatsoever. 2. Whether having regard to the provisions of S.10 (2), (3) and (4) of the Nigerian Communications Act, 2003 the fundamental right to fair hearing of the claimant was not breached having not been served with the statutory notice of the intention of the 1st defendant to remove him from office and the reasons thereof and afforded the statutory opportunity to make written submissions thereto prior to his removal from office. 3. Whether having regard to the provisions of sections 8 and 10 of the Nigerian Communication Commission Act, 2003, the appointment of the Claimant by the 1st defendant does not have legal status to invest the Court with the power to order re instatement of the claimant and payment of his salaries and allowances since November, 2012. 4. Whether if questions 1, 2 &3 above are answered in the affirmative, the Claimant is not entitled to exemplary and aggravated damages. In their background to the preliminary objection the Defendants state that the claimant’s four reliefs are (a) A Declaration that the purported removal of the claimant as an Executive Commissioner of the NCC by the 1st defendant via letter dated November 26 2012 is illegal, unconstitutional, ultravires, null and void of no effect whatsoever as it violates the provisions of section 10(2),(3) and (4) of the NCC Act, 2003. (b) A Deceleration that the failure or refusal of the 1st defendant to serve the claimant with the statutory notice of intention to remove him from office and the reasons thereof and afford him the opportunity to make written submissions there to prior to his removal from office is illegal, null and void as it violates the claimant’s right to fair hearing guaranteed by Section 10(2),(3) and (4) of the NCC Act, 2003. © A Mandatory Order of the Court directing the 1st defendant herein to reinstate the claimant as an Executive Commissioner of the Nigerian Communications Commission and pay him his accrued salaries, benefits and allowances since Nov. 26, 2012 till judgment is delivered in the suit. (d) An order directing the 1st defendant to pay the sum of N500,000.000.00 (Five Hundred Million Naira only) to the claimant as exemplary and aggravated damages as a result of his unlawful removal as Executive Director of the Nigerian Communications Commission, and by extention as chair of the International Telecommunication Union Radio Communication Advisory Group as well as Vice-Chair of the ITU joint Task Force group 4567. The following was formulated as sole issue for determination. That is; Whether the commencement of this suit by way of Originating Summons has not robbed the Court of the jurisdiction to entertain the suit the same being highly contentious. By way of response, counsel for the claimant in their legal submissions in opposition to the defendant’s preliminary objection dated 2nd September, 2013, submits at paragraph 2.1 page 1&2 thereof that the argument of defendant’s counsel that the substantive matter ought to have been commenced via Writ of Summons instead of Originating Summons is highly miscoconceived and eroneous . It is the argument of counsel to the defendant at paragraph 4.1 of their address that the rules of superior Courts in Nigeria have always provided for ways actions can be validly commenced. He relies on the case of OMNIA NIGERIA LTD V. DYKTRADE (2007) ALL FWLR 201 SC. Where the S.C held that a writ of summons is normally used to commence all actions, except where a particular rule of law provides otherwise. On the effect of such wrongful commencement, he cites the case of KIDA V. OGUNMOLA (2006), 13NWLR (pt997) 377 SC. Where the Court held that it is generally the law too that an action commenced by an invalid originating process is null and void as it goes to the jurisdiction of the Court to entertain the action. On this basis of lack of jurisdiction counsel relied further on the case of AGIP V. AGIP PETROL (2010) 42 NSCQR PG167 at 179,. That the means of commencement of Action had robbed the Court of jurisdiction and he relies on the cases of MADUKOLU V. NKEMDIL.I M (1962) 2 SCNR 341; NYAME V. F.R.N (2010) 42 NSCQR pg 45 at 52 and SENATE PRESIDENT V. NZERIBE (2004) 9 NWLR (PT 878) pg 251 at 256. Counsel submits further that the action is highly contentious and that the claims raised by the claimant cannot be resolved by affidavit evidence as there will be need to call witnesses and have the claimant vigorously cross examined in the witness box, that his claim does not dwell or border on interpretation of documents above. Counsel submits that once the Court holds that it has no jurisdiction it should strike out the matter and relies on UWAZURUIKE V. A.G.F (2007) 29 NSCQR pg 489 and NELSON V, EBANGA (1998) 8 NWLR (PT.563) pg 650, and NTUKS V. N.P.A (2007) 31 NSCQR pg 430@438 and urged the Court to strike the suit out for incompetence. In further response to the above submission, counsel to the claimant at paragraph 2.2 submits that an originating summons is best suited for the instant case having regard to the fact that the same borders on the construction and interpretation of certain Sections and provisions of the NCC Act 2003.These being Section 8 and 10 of the said NCC Act 2003. Counsel submits that the facts are not in dispute as to the crux of the substantive matter, which is that the procedures enshrined in the NCC Act, 2003 were not followed in the removal of the claimant, and calls on the Court to take a look at the facts and circumstances of the case in juxta position with the true intent of the drafters of the NCC Act 2003 in order to determine the matter one way or the other. In reply to the submission that the action ought to have been commenced by a writ of summons, claimants counsel submits at page 4 paragraph 3.0 that it is expected that in case of construction of statutory provisions commenced by originating summons there might be a modicum of contentious issues as no litigation is a hundred percent free from contentious issues: The question being: Are the contentious issues considerable, important, large in amount or value as to dwarf the sole principal question in issue? Counsel relied on OGUNSAKIN V. AJIDARA (2010) 10 W.R.N 103 per Denton West JCA where the learned JCA quotes Tobi JSC in the case of Lagos State Development and property cooperation V. Adold Stamm Int. (Nig) & Anor. 21 NSCQR.431 @ 448 where the JSC said: “for conflict in affidavit to receive the attention of the Court, the conflict must really affect the live issue involved in the case”…. Counsel submits further at paragraph 4.1 for the claimant that all the cases cited by the counsel to the defendant are of no moment to the circumstances of the instant substantive matter. That they are authorities esponging the general rule/principle of commencement of action. They submit that each case has its own peculiarities which the Court must consider painstakingly to arrive at a just determination. Counsel submitted also that assuming without conceding, that a writ of summons is the most appropriate in the circumstance of the case, the Court has the inherent powers to order pleadings and not an order for striking out; and relied on OBA ADEGBOYEGA OSUNBADE (ADEYELU U) V. OBA JIMOH OLADUNI OYEWUNMI (AJAGUNGBADE III) & 2ors sc.79/2002, 2007(5) LEDLR 14; (2007) 4-5 S.C 98. Counsel urged the Court to dismiss the preliminary objection as being unmeritorious and a sheer waste of the Court’s time. Having just gone through the submissions of both counsel for the claimant and defendants, I must quickly resolve the issue as to whether the action is properly initiated by due process of law i.e. whether it ought to have been brought by way of originating summons. The Supreme Court in the case of DAPIALONG V. DARIYE 8 NWLR (2007). Part 1036 had this to say at ratio 13, pages 364 – 365; on commencement of an action by originating summons and the nature of an action that can be commenced by originating summons. The Court said: “Originating summons is the method of commencing an action where the facts are not in dispute, or where there is no likelihood of the facts being in dispute and where the sole or principal question in issue is or is likely to be one directed at the construction of a written law, the constitution, or any instrument, or any deed, will contract or other document, or other question of law. In other words, originating summons is used for non-contentious actions or matters, that is those actions where the facts are not likely to be in dispute… a plaintiff applying its use must always accompany an originating summons with an affidavit in support, which authenticates the plaintiff’s claim in clear terms and a defendant upon service… may wish to file a counter affidavit … parties to an originating summons are not allowed to adduce oral testimonies in proof of their deposition in their respective affidavits and counter affidavits… All the Court needs to do is to proceed to hear and determine the suit by deducing inferences from the affidavit evidence filed by the parties. See Director S.S.S V. Agbakoba (1993) 3 NWLR (pt 595) 314; DIN. V.A.G Federation (1986) INWLR (PT. 17) 471, Keyamo v. house of assembly, Lagos state (2002) 18NWLR (pt.799) 605; The Supreme Court also in the case of F.E.W.J WOHEREM V. EMEREUWA & 4 ORS NWLR (2004) 13NWLR part 8i90 per. Iguh JSC delivering the lead judgment at page 419 of the report paras F and G said similarly: if the facts to sustain the preliminary point are obscure or at large a preliminary objection may not properly be taken. A matter therefore which is raised by way of a preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary objection. Such a matter is more properly answered by evidence during the trial and shall constitute an issue for the trial. In the present case I find in the midst of the arguments and submission of the counsel to both parties that the preliminary objection does not convince the Court as regards its claim that there are issues which can only be addressed by evidence in opposition to the Originating Summons of a substantial nature which robs the Court of jurisdiction. I have looked keenly at the submissions in support of the preliminary objection and I am of the view more in line with the submissions of Mr. Falana (SAN) counsel for the claimant at paragraph 4.1 page 6, that all the cases cited by counsel to the defendants are not of moment to the circumstances of the substantive matter. That they are authorities espousing the general rule/principle of commencement of action. I am in agreement with this line of reasoning and I therefore resolve the issue whether the commencement of the suit by originating summons has not robbed the Court of jurisdiction is to be answered in the negative, it has not, robbed the Court of jurisdiction and I so hold. I find that the points raised in the preliminary objection cannot be properly taken to sufficiently answer the questions of law and fact raised in the substantive matter. See WOHEREM V. EMEREUWA (supra). These points can only be taken more properly at the substantive stage where the ready answers are to be found in the depositions of affidavit evidence as laid out in the affidavit in support of the originating summons and the counter affidavit of the defendants. For the above the preliminary objection is hereby dismissed as lacking merit. I therefore hold that this Court has jurisdiction to hear the matter as commenced by originating summons. Having settled the matter of the preliminary objection. The Court must now turn to the substantive matter which is the originating summons and the response thereto. In the amended originating summons and the address in support the claimant, raised 4 questions for determination: (1) Whether by virtue of the provisions of Section 10(2), (3) and (4) of the Nigerian Communication Act 2003, the purported removal of the claimant as an Executive Commissioner of the Nigerian Communications Commission by the 1st defendant via a letter dated November 26 2012 is not illegal unconstitutional, ultra vires, null and void and of no effect whatsoever. (2) Whether having regard to the provisions of Section 10(2), (3) and (4) of the Nigerian Communications Act, 2003, the fundamental right to fair hearing of the claimant was not breached having not been served with the statutory notice of intention of the 1st defendant to remove him from office and the reasons thereof and afforded the statutory opportunity to make written submissions thereto prior removal from office. (3) Whether having regard to the provisions of Section 8 and 10 of the Nigerian Communications Commission Act 2003, the appointment of the claimant by the 1st defendant does not have legal status as to invest the Court with power to order reinstatement of the claimant and payment of his salaries and allowances since November 2012. (4) Whether if question 1, 2, & 3 above are answered in the affirmative, the Claimant is not entitled to exemplary and aggravated damages. By way of response in their own address in opposition to the amended originating summons, the defendants formulated 2 issues for determination. These being (sic): (1) Whether having regards to the process of the removal of the claimant passed through before his removal from office. It could still be said to be in contravention of Section 10(2), (3) and (4) of the NCC Act, 2003 and also a breach of his Fundamental Human Rights to fair hearing (2) Whether an employer does not have the right to dispense with the services of an employee be it political appointee or one with legal status, who has exhibited Acts of gross misconduct on several occasions and who has refused to turn a new leave. Both parties made useful submissions in their addresses in support of and against the Originating Summons. But as the trite position of the law states; issues in dispute man an originating summons are usually and invariably resolved through affidavit evidence and no oral testimony is allowed in this respect, the demeanour of the parties and their witnesses play no part in the adjudication. All the Court needs to do is to proceed to hear and determine the suit by deducing inferences from the affidavit evidence filed by the parties. See DAPIANLONG V. DARIYE (supra) @ page 443 Para B. see also DIRECTOR S.S.S V. AGBAKOBA (supra) The amended originating summons is supported by a 30 paragraph affidavit deposed to by the claimant himself, while the counter affidavit of the defendants was deposed to by one Friday Atu in 4 paragraphs. Paragraph 4 of the said affidavit having subparagraphs listed a to o. As I turn to the affidavit evidence of the parties the Court turns to the Court of appeal judgment in the case of OGUNSAKIN V. AJIDARA (supra) for guidance. Where Per Denton West, JCA, who delivered the lead judgment, quoting Niki Tobi JSC in Lagos State property corp. V. Adold Stamn (Supra) at pg 448: “For conflict in affidavits to receive the attention of the Court, the conflict must really affect the live issue involved in the case. The conflict must be tangible, not intangible, it must be material not immaterial and it must be substantial and fundamental to the live issues in the case. Where conflicts are peripheral, cosmetic, in articulate or a mere farce orchestrated by the party, a Court of law will not order that oral evidence be led to resolve or reconcile the “the conflict” in inverted commas”. In paragraphs, 4 & 5 of the affidavit in support of the originating summons the Claimant /Deponent made following depositions: That by virtue of Section 4 of the Nigerian Communications Act, 2003, the 1st defendant is vested with powers to appoint the chairman and all the Executive Commissioners of the National Communications Commission. That he was appointed an Executive Commissioner of the Nigerian Communications Commission in 2005 taking effect from 6th January, 2006) pursuant to the provisions of Sections 4 and 8 of NCC Act 2003 for a term of 5 years. At paragraph 10 and 11 the deponent states: upon the completion of his initial term of 5 years his tenure was renewed for another term of 5 years by the 1st defendant in 2010 (taking effect from 6th January 2011). He attached exhibits BG-01B as his letters of appointment and renewal respectively signed by the 1st defendant’s representative. That since the renewal of his tenure for another 5 years by the 1st defendant in 2010 he has carried out his duties as Executive Commissioner (Technical Services) of the NCC with utmost commitment, dedication and the highest level of professionalism. At paragraph 12 he states that as Executive Commissioner (Technical Services) of the NCC be brought honour to Nigeria by being elected to chair two (2) different International Communications Groups. Exhibit BG 02 is a congratulatory message from the 1st defendant in that regard. At paragraph 14 he states: “That on the 6th of August 2012, at a meeting chaired by the vice President of Nigeria he had cause to offer professional advise as Executive Commissioner (Technical Services) of the NCC and did challenge certain persons in the Ministry of Communications Technology and the NCC for causing the Federal Republic of Nigeria to lose several billions of naira which should have been paid in to the Federation account. At paragraph 15 he states that based on his stand at the said meeting the Minister of Communication Technology via a letter dated 2nd November 2012 and under the guise of having him to have committed certain acts of misconduct as Executive Commissioner (Technical Services) of the NCC recommended to the 1st defendant for approval that disciplinary action be taken against him, Exhibit BG 03 is the said letter and notice to produce the original of this letter with its 3 annexures. He deposes further at paragraph 16 that the 1st defendant approved disciplinary action against him. At paragraph 17 the deponent states: That to his utter dismay, the 1st defendant via a letter dated 26th November, 2012 signed by Chief Anyim Pius Anyim, the Secretary to the Government of the Federation on behalf of the 1st defendant removed him from office as Executive Commissioner (Technical Services) of the Nigerian Communications Commission the letter is exhibit ‘BG 04”, the letter of removal from office. Deponent states that he briefed his lawyers who wrote Exhibit BG05 a letter requesting for his re instatement, this at paragraph 18, and at paragraph 19 he states the 1st defendant refused to reinstate him as requested. At paragraph 20 the deponent states that prior to his unlawful removal from office through exhibit BG04” no written notice was given him as appropriate in the circumstance of the 1st defendant’s intention to remove him from office and the reasons thereof . At paragraphs 21 he states that no reasonable opportunity was availed him by the 1st defendants to make written submissions to the 1st defendant prior to his removal. At paragraph 22 he states further that he was denied opportunity to submit written submission to the 1st defendant and none was considered at all as appropriate by the 1st defendant in making his final decision to remove him from office. By way of response at the paragraph 4 of the counter affidavit of the defendant. The deponent states as follows; That he was informed by Mr. Jerry. I. Ugwu Chief of Staff to the Executive Vice Chairman/CEO NCC, on behalf of the 1st and 2nd Respondents to make the depositions in sub paragraphs a to o. The deponent at subparagraph (a) states that paragraph 9 of the affidavit of the claimant is false. Exhibit 01 is attached as a minutes extract. At sub paragraph b the deponent states that paragraph 10 of the claimant’s affidavit is false that the then president never made any such recommendation to the senate. At sub paragraph c, the deposition therein is at variance with the deposition of the claimant in his paragraph 12 which it seeks to answer, while the latter talks of congratulatory letter at the achievement of the claimant the former is talking of spectrum administration. At sub paragraph h the deponent states that the board heard the claimant who made written and written responses which was exhibit 01A at sub paragraph d Exhibits 03 & 3A are attached as copies of query letters issued to the claimant that urged him to desist from conduct unbecoming of a staff of his status. Sub paragraph K attaches Exhibit 04 which is the reply to exhibit BG05 of the claimant’s letter written to the 1st defendant by his counsel. At sub paragraph I it is deposed that the 1st defendant could not afford to keep the claimant in his service to the detriment of the entire commission. At subparagraph m the deponent states that the claimant was given reasonable opportunity to defend himself prior to his removal from office. From the above, it is clear that the above issues as canvassed by the parties in their affidavits all relate to the main/live issue involved in the case. Any of the Depositions on the affidavits of the Claimant or Defendant not brought up for consideration (except paragraphs 24 to 28 and 2a of the claimants affidavit in support of the originating summons) are to be considered as peripheral depositions. From the affidavit evidence of both parties it is clear that both Claimant and Defendant are ad idem that the claimant was removed from office via letter dated 26th November 2012 written and signed by the Secretary to the Government of the Federation. They only differ in that one party contends that the removal of the claimant was contrary to the provisions of the NCC Act, Section 10 (2) (3) and (4) while the other contends that it was not. This leaves it clearly to the Court to construe the provisions of Section 10 of the NCC Act. It is only after this construction that the Court would be able to resolve the issues formulated by both parties for determination. Section 10 of the NCC Act provides: 1. Subject to sub Section (2), (3) and (4) of this Section, a Commissioner may be suspended or removed from office by the President if he a. Is found to have been unqualified for appointment as commissioner pursuant to Section 7 of this Act or is in breach of Section of Section 7(2) here of after his appointment, b. has demonstrated inability to effectively perform the duties of his office c. has been absent from 5(five) consecutive meetings of the Board without the consent of the Chairman except he shows good reason for such absence, d. is guilty of a serious misconduct in relation to his duty as a commissioner; e. in the case of a person with professional qualification, he is disqualified or suspended from practicing his profession in any part of the world by an order of a competent authority. f. is in breach of the conflict of interest Rules set out in the second schedule to this Act. 2. Prior to the suspension or removal of a Commissioner under Subsection (1) of this Section, the President shall inform the commissioner by written notice, as soon as practicable, of his intention to suspend or remove the commissioner from office and the reasons therefore. 3. The affected Commissioner under Subsection (1) of this Section shall be given a reasonable opportunity to make written submission to the President within a time period specified in the notice and such time period shall not be less than 14 days from the date of the notice. 4. The affected Commissioner may, within the time period specified in the notice, submit a written submission and the President shall consider the submission in making his final decision on the commissioner’s suspension or removal from office. At issue one; on whether by virtue of S. 10(2), (3) and (4) the NCC Act, 2003, the purported removal of the claimant as commissioner in the NCC by 1st defendant via letter dated 26 November 2012 (exhibit BG 04) is not illegal, Unconstitutional, ultra vires, null and void and of no effect whatsoever. By their own argument in their issue one the defendants state that: Whether having regards to the processes the removal of the Claimant passed through before his removal from office, it could still be said to be in contravention of section 10 (2), (3) and (4) of the NCC Act, 2003 and also a breach of his Fundamental Right to fair hearing. To the Court, these two issues formulated by the parties amounts to simply saying whether the provisions of Section 10 (2), (3) and (4) of the NCC Act 2003 were not followed as laid down or contravened in very real terms. In their issue I, counsel for the Claimant submits at page 10 paragraph 8 that it is explicit from the affidavit evidence placed before the Court that the crux of the instant matter is the utter violation of the relevant statutory provisions/procedures for the removal from office of the Claimant. Counsel submits that the reproduced provisions of the NCC Act 2003 imposed a legal duty on the 1st defendant by the law vis a vis removal of the Claimant which prevents the first defendant from adopting any procedure he deems except that enshrined in the NCC Act 2003 in removing the Claimant from office. Counsel submits at paragraph 12 that the law is consistent and well settled that where an Act prescribes a particular method of exercising statutory power, as in the instant case, any other method of its exercise is excluded and relies on AUCHI V. OKUOGHAE (2005) 28 WRN and ISAAC OGUNLAJA V. A.G. RIVERS STATE & OR (1997) 6 NWLR (pt 508) page 209. Counsel submits that when the meaning of words used in a statute are very clear and unambiguous effect must be given to those words without resort to extrinsic aid. Counsel relies on A.G ONDO V. A.G. EKITI (2001) 17 NWLR (pt 743) 706, 2001 where karibi Whyte J.S.C had this to say: “The solemn and sacred duty of the Court is to interpret the words used in the Section by the Legislator and give to them their intended meaning and effect.” See AWOLOWO V. SHAGARI (2001) (FWLR PT 73) 53. Counsel submits that the word ‘shall” employed by the lawmakers to midwife. Section 10, Subsection (2), (3) and (4) of the Act connotes mandatory compliance; imposing an obligation on the 1st defendant. Counsel cites KALIEL V. ALIERO (1999) 4 NWLR 139 @ 144, UGWU V. ARARUME (2007) 3 WRN Quoting Niki Tobi JSC on the implication of the word shall in a statutory provision means things must be done and it is mandatory not permissive. Counsel submits at paragraph 21 that in the instant case no written notice was given the claimant of the 1st defendant’s intention to remove the claimant from office in line with the mandatory provisions of S. 10(2) of NCC Act 2003. In paragraph 22 of the address counsel states that no opportunity was availed the Claimant by the 1st defendant to make a written submission to the 1st defendant in line with the mandatory provision of S.10(3) of the NCC Act 2003, and that no written submission of the Claimant was ever considered in line with the mandatory provisions of S.10 (4) of the Act by the 1st Defendant in reaching the conclusion to remove the Claimant; that the Claimant was hurriedly removed from office by the 1st Defendant in flagrant disregard of the NCC Act. Counsel cites Federal University of Technology Akure V. Osemenan (2011) 31 WRN, 148 @ 157 that justice rushed is justice crushed; and urged the Court to give effect to the provisions of the NCC Act, 2003 being section 10 (2), (3) and (4). By contrast the Defendants submit on their issue one that all that were required to be done under the relevant section of the NCC Act 2003 the claimant having acted as Executive Vice Chairman for some months could not bring himself to accept the realities on ground when eventually another CEO was appointed by the 1st defendant and from that moment the claimant turned all his energy to was promoting everything that could lead to the down fall of the NCC under the new CEO. Counsel goes on to make re statement of the depositions in counter affidavit in opposition to the Originating Summons specifically sub paragraph h, I and j and refers to exhibits 02 and 02A, being or as headed; Letter of Invitation by Committee to review recommendation of the Board of the NCC in respect of the allegation of misconduct against the claimant of 14th September 2012 being exhibit 02. Exhibit 02A is an internal memo. Having traced all these processes, Counsel for the Defendants submits that the removal letter was then served on the claimant and the claimant could not be heard to say he was denied fair hearing under the constitution and the NCC Act, 2003 counsel relied on the case of ZIIDEH V. RSCCSC (2007) 29 NSLQR pg 701 to submit that the record of the claimant had been stained heavily with severed offences and he is not amenable to discipline. Counsel also relies on CHIDOKA V. F.C.F COMPANY LTD (2013) A FWLRC pt) 659 page 1024 @ 1026 to submit that where a party had been given to an opportunity to present his case and he fails to make use of such opportunities then he cannot complain of the denial of fair hearing. For the fact that counsel to the defendants could not relate or marshal his arguments to answer specifically the issues he himself raised as to whether the process of removal of the claimant was in contravention of Section 10 (2),(3) and (4) of the NCC Act, I resolve the issue in favour of the claimant, because exhibits 02 and 02A that I described a short while ago and exhibits 03 (an internal memo) and exhibit 03A fall far short of what the requirements of Section 10(2), (3) and (4) of NCC Act, 2003 stipulate in order to make the removal of the claimant legal. The Defendants have not raised any issue on the requirement of a written notice which had to be given or served on the claimant of the 1st defendants intention to remove him from office in compliance with Section 10(2) of the NCC Act 2003. The Defendants have also not addressed the issue of the mandatory requirement that the claimant make a written submission to the 1st defendant. Any requirement to make a written submission to the Board or to the Minister in charge or any other authority other than the 1st defendant would not suffice as was the case here. The defendants never addressed the issue of the requirement under Section 10(4) for a written submission of the claimant to be considered by the 1st defendant in reaching the conclusion to remove the claimant. In the premises of the above reasons, having resolved that the provisions of Section 10(2),(3) and (4) of the NCC Act 2003 were not followed in the removal of the 1st defendant, therefore making the removal illegal and in contravention of the provisions of the NCC Act 2003 as stated and it breached the right of the claimant to be properly heard. In Olaniyan V. Unilag 2004 (15) WRN page 63 and 64 Aniagolu JSC had this to say: “To remove a public servant in flagrant contravention of the rules governing him, wither under contract or under provisions of a statute or regulations made there under, is to act capriciously and to destabilize the security of tenure of public servants, frustrate his hopes and aspirations and thereby act in manner inimical to order, good government and the well being of society.” I find the same for the case at hand. In MACFOY V. U.A. C (1962) AC 152. It was famously said by Lord Deming: “If an act is void then it is in law a nullity ... you cannot put something on nothing and expect it to stand it would collapse”. Here, the inevitable is the knock on effect of the determination of issue I as formulated by Mr. Falana or Mr. Mbam or even the Court in favour of the Claimant that his removal did not follow law the and as such is incurably bad. For this reason issue 2 as formulated by Mr. Falana is accordingly decided in the claimants favour. With regard to issue 3 whether the provisions of Section 8 and 10 of NCC Act 2003 does not give the Court the power to order re instatement of the claimant. In this wise counsel to the defendants formulated his issue 2 as whether the employer does not have the right to dispense with the services of an employee be it political appointee or one with legal status. I have gone through the submissions of both counsel on the issue and I am convinced that the claimant’s appointment/employment enjoys statutory flavour, even though it can be said; more of a political appointment with tenure, of 5 years that he has not been allowed to see through by his removal. The appointment of the claimant has statutory flavour see IDONIBOYE – OBU V. NNPC (2003) 9 WLR 76. (2003) 2 NWLR (pt 805) 859; (2003) (SCN) 87. Counsel to the Claimant now seeks that the Court should order re instatement of the claimant since the Court is invested with such powers, having determined that employment of the claimant has statutory flavour. He relies on the case of NIGERIA GAS COMPANY LTD VL DUDUSOLA (2005) 36 W.R. N. 16 the Court of Appeal per Abba, JCA as he was held that the remedy for unlawful termination of employment protected by statute. That where an employment protected by statute is terminated unlawfully, the remedy is to declare such termination null and void and to reinstate the employee so affected to his former position. By contrast Mr. Mbam has submitted much in line with his issue 2 as formulated, when he submit that the claimant being a political appointee owes his continuous stay on the job at the pleasure of the 1st defendant whether the stated number of years is up to or not. He states that the claimant cannot be asking for re instatement having shown that he cannot work under any management not led by him. He relies on the judgment of the Supreme Court in ZIIDEH V. RIVERS STATE CIVIL SERVICE COMMISSION Supra. Where Ogbuagu JSC held that “A Court cannot impose or foist an employee on an unwilling employer and on the remedy open to an employee who felt aggrieved over his dismissal/termination is always an award of damages where the termination is held to be wrongful but certainly not a declaration that the termination (if wrongful) is null and void as appear in the claims of the claimant… this is why there cannot be a relief for specific performance. Like an order for re instatement”. I have had the benefit of weighing both submissions and on the relief or order for reinstatement; I am on all fours with the dicta of Ogbuagu JSC in the ZIIGEH case just quoted above. The Court hereby holds that it will not order re instatement but will rather consider the issue of damages. Before proceeding any further it is noteworthy to say that the claimant filed a reply on points of law to the defendant’s legal submission to the originating summons. It was dated 2nd September 2013. I have gone through them and they are more of a reworking of the arguments/submissions made and mostly upheld in the written address to the originating summons. I bring this up now as I consider the argument against the defendant’s reliance on the case of ZIIDEH (Supra) where the Claimant submits at paragraph 29 page 8 of the reply that the decision of the Supreme Court applies to simple master servant relationship. In this regard, I differ on counsel’s submission and would insist that in the body of the affidavits relied on by both parties and from the content of some of the exhibits therein that I need not mention here, that there exists a real atmosphere of festering acrimony against the other, that the claimant and the others were not getting along is there to be seen, but all those fell short of the reason to remove him which had to be by lawful means i.e. recourse the NCC Act which was not done. In paragraphs 24 to 28 and 29 are deposition made by the claimant and these are not responded to by the defendants. In these paragraphs the claimant details how agents of the 1st Defendant wrote to the International Telecommunications Union in Switzerland requesting his removal and he was eventually replaced. At paragraph 28 he states that this has seriously maligned his hard earned reputation and dignity and pride as he has been brought to shame and ridicule to right thinking people across the globe and that they are irrecoverable As these paragraphs are uncontroverted they must be taken as true, and I so hold. In their 4th prayer the claimant is praying for an order of Court directing the first defendant to pay the sum of N500,000,000 (Five Hundred Million Naira only) to the claimant as exemplary and aggravated damages as a result of his unlawful removal as an Executive Director in the NCC and by extention as Chair of the International Communications Union. This the Court will return to that shortly. With regard to the 1st relief sought by the Claimant, the Court Declares the removal of the claimant via the Letter of 26th November 2012 illegal and unconstitutional as it violated both NCC Act 2003, in Section 10(2),(3) and (4) and the fair hearing provisions of the 1999 Constitution. This relief covers the second relief sought the third relief sought for, re instatement is refused. But the 1st defendant is hereby directed to pay the claimant his accrued salaries, benefits and allowances since November 26 2012 up till this Day of Judgment. As to the 4th relief for exemplary and aggravated damages as a result of the unlawful removal of the Claimant, the claim for damages is granted at N100,000,000.00 (One Hundred Million Naira) against the defendants. ________________________ HON. JUSTICE E. D. E. ISELE JUDGE