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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: July 01, 2015 SUIT NO. NICN/OW/18/2013 Between: 1. Paul Ogujiofor 2. Kelvin Agbaegbu 3. Louis Onwuanli Claimants 4. Philip Onyelankea Onyenwoke And 1. Governor of Imo State Defendants 2. Attorney General of Imo State 3. Imo State Independent Electoral Commission 4. Imo State House of Assembly Representation: J. T. U. Nnodum SAN; with him, N. R. Chibuisi (Mrs.), and O. G. Adindu Esq., for the Claimants S. E. Ibechem (Deputy Director, Civil Litigation, Ministry of Justice, Imo State) for the 1st and 2nd Defendants E. O. Ndubuisi for the 3rd Defendants I. S. Iwuoha for the 4th Defendant. JUDGMENT This suit was originally instituted at the High Court of Imo State on the 16th day of August 2012. The case was later transferred to this court on the 3rd day of October 2013. Upon coming up for the first time in this court on the 13th day of November 2013, the court ordered parties to re-file their processes to bring them in compliance with the rules of this court. The Claimant’s complaint filed on the 26th day of November 2013 sought against the defendants jointly and severally, the following reliefs: 1. A declaration that the tenure of office of the claimants as members of the Imo State Independent Electoral Commission is subsisting, and shall expire in 2015. 2. A declaration that the claimants are entitled to their salaries, allowances and other entitlements as members of the Imo State Independent Electoral Commission from June, 2012 till the expiry of their tenure of office. 3. A declaration that the purported removal of the claimants from office as members of the Imo State Independent Electoral Commission is unconstitutional, null and void. 4. An order reinstating the claimants to their office as members of the Imo State Independent Electoral Commission. 5. An injunction restraining the defendants from preventing the claimants’ due exercise of their duties as members of the Imo State Independent Electoral Commission. 6. An injunction restraining the defendants from removing or purportedly removing the claimants from office as members of the Imo State Independent Electoral Commission, or, in any other way, interfering with the duties of the claimants in the said office, except in strict compliance with the relevant provisions of the constitution of the Federal Republic of Nigeria, 1999, as amended. 7. An injunction restraining the defendants from appointing or confirming the appointment of any person/s as members of the Imo State Independent Electoral Commission in the place of the claimants in the commission. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Claim, the Claimants’ written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The 4th Defendant filed its Statement of Defence, List of witnesses and Witness’ deposition on oath on the 7th day of January 2014 while the 3rd Defendant vide a motion for extension of time, filed its Statement of Defence, List of Witnesses and Witness’ deposition on oath on the 31st day of January 2014. The 1st and 2nd Defendants also, vide a motion for extension of time, entered appearance on the 31st day of January 2014, and subsequently filed a joint Statement of Defence, List of Witnesses and Witness’ deposition on oath. Intervening preliminary applications were taken and resolved, and the case proceeded to hearing on the 18th day of June 2014. The 1st Claimant testified on behalf of the Claimants as CW1; Anthony Mbadinuju testified on behalf of the 1st and 2nd Defendants as DW1 while Osueke Veronica testified on behalf of the 3rd Defendant as DW2. The 4th Defendant did not call any witnesses. At the close of the case for all the parties, this court ordered the parties to file their final written addresses in accordance with the Rules of court. The 1st and 2nd Defendants filed their Final Written Address on the 2nd day of March 2015, while the Claimants’ Final Address was filed on the 9th day of March. The 3rd defendant’s Address was filed on the 16th day of March vide a Motion for extension of time. Same was deemed properly file by order of court on the 19th day of March 2015. Thereafter, the Claimants filed a Reply on 26th March 2015 in response to the 3rd Defendant’s Final Address. The 4th Defendant did not file any Final Written Address. Parties adopted their respective written addresses on the 23rd day of April 2015. The brief facts of the case as distilled from the pleadings, is that the Claimants, in February, 2010 were appointed by the 1st defendant to be members of the 3rd defendant for a five-year tenure and they were sworn in on 24/2/2010. They assumed duties as such, and functioned as members of the 3rd Defendant until June, 2012 when they were purportedly removed from office by the issue that gave rise to this action, and the issue was a Newspaper Publication from the 1st defendant that a new chairman and members of the 3rd defendant had been purportedly sworn in. On the 6th day of June, 2012 to solidify the purported removal, the 3rd defendant wrote to the Claimants to return the official cars attached to their respective offices which they complied with, consequent upon which their offices with the 3rd defendant were made inaccessible to them. The 1st and 2nd defendants in their written address filed on the 2nd day of March 2015 nominated a lone issue for the Court’s determination to wit: Whether the claimants have proved their case to entitle them to the reliefs sought. Counsel in arguing this issue submitted that it is settled law that the burden is on the party who alleges that his appointment was wrongly terminated and claims for a declaration that the termination is nullity to prove same. See the case of College of Medicine vs. Adigbule (1973) 5 SCI194. To discharge this burden the party must plead and proof the following:- (a) He is an employee of the defendant (b) The terms and conditions of his appointment. (c) The circumstances under which his appointment can be determined, and (d) In what manner the said terms were breached by the employer See IGBINOVIA vs. UBTH (2001) FWLR (Pt. 50) 1745 @ 1761 paras D – E. The 1st claimant during his evidence-in-chief tendered the following documents on behalf of himself and the other claimants: i. Their letters of appointment each dated 24/2/2010. ii. A letter from O.C. Olumba, Director of Legal Services of ISIEC titled “Return of Government Properties Toyota Corolla Car (with the registration of the car) each dated 6/6/2013. iii. Another letter from the said director of legal service of ISIEC acknowledging receipt of the car. iv. A photocopy of an uncertified newspaper of Announcer Weekend, Friday, May 25th – May 27th 2012. It is counsel’s submission that while the letters of appointment tendered by the 1st claimant stated the conditions of service of the claimants as it relates to emoluments it did not state the terms and conditions of their alleged appointment as members of ISIEC, and the circumstances under which their appointment can be determined. Since the claimants failed to establish the terms of their appointment and the circumstances under which their so called appointment can be determined, they cannot by any ingenuity show in what manner the unstated terms were breached by the 1st and 2nd defendants. Again, the letters of appointment as members of ISIEC referred to a circular No. SGI/S.99/S.6/T.2/100 of May 2007 where the conditions of service are contained. The circular was not tendered by the claimants to enable the court determine the claimants’ terms and conditions of appointment. What was tendered was a photocopy of newspaper media report in an Announcer Weekend, Friday, May 25th – 27th May, 2012. Counsel relied on the case of Uzoho vs. Task Force on Hospital Management, & Ors. (2003) FWLR (Pt. 166) 606 @ 617 paras D – F, where the court held inter alia that: “Where it is within the means of a party to produce, or enforce the production of a document by way of subpoena, and no satisfactory reason(s) or any reason at all was given for failure to do so before the party’s case is closed, it is proper for the court hearing the case to construe the failure to produce the document against that party. In such a case the court would rightly presume the contents of the document as being against the interest of the party who ought to have produced it”. Section 169 of Evidence Act, 2011”. He urged the Court to construe the failure of the claimants to produce the circular wherein their terms and conditions service are contained as a failure on the part of the claimants to plead and prove the essential elements of their case. Similarly, with respect to the tendered newspaper being a public document within the meaning of Section 102 and 104 of the Evidence Act, 2011, the failure of the claimants to certify the Announcer Weekend of Friday May 25th – 27th 2012 upon which they solely relied as evidence of their removal from office, makes the document worthless, and the Court was urged to so hold and not to place reliance on same. See the case of Dagaci of Dere vs. Dagaci of Ebwa (2006) All FWLR (Pt. 306) 786 @ 839-840 paras. H – B. The trite law is that a court of law can only determine an issue on legally admissible evidence, and has no discretion to act on evidence made inadmissible by the express provision of a statute even with the consent of the parties. See Eghobamien vs. Federal Mortgage Bank (2002) 11 NSCQR 183 @ 190 Para F. Counsel contended that the said Announcer Weekend though admitted in evidence is not evidence of the fact recorded therein. In the case of Agbai vs. INEC (2009) All FWLR (Pt. 449) 594 @ 612 paras G-H the Court of Appeal held thus: “The document at page 347 of the record being an uncertified newspaper publication certainly is not admissible by virtue of the provisions of Section 116 of the Evidence Act. It is trite that newspaper reports are not generally admissible as evidence of the fact recorded therein”. Oneh vs. Obi (1999) 7 NWLR (Pt. 611) 487; Ngige vs. Obi (2006) 14 NWLR (1999) 1 @ 167 – 168 para D – F, etc. On the strength of the above assertion, counsel submitted that this instant suit is speculative because The claimants have not placed any material before this court to prove that they were removed by the 1st and 2nd defendants or aver that they wrote any of the defendants respecting their alleged appointment as members of the 3rd defendant vis-à-vis the purported media publication. They also did not give evidence that at any time they visited the premises of the 3rd defendant they saw persons occupying their various offices or subpoena the existing chairman of the 3rd defendant to prove that other persons have taken over their appointments. The truth as laid down by counsel is that the claimants were not properly and duly placed in office by their political godfather during the last administration in Imo State. The claimants being aware of the illegality in their appointment suddenly absconded from office. The 1st claimant claimed in his evidence-in-chief that their purported appointments were confirmed by the 4th defendant on the 4th of February, 2010 through a resolution. A resolution of the 4th defendant is a public document that is within the power of the claimants to call for. They did not do that and left the court to speculate as to the veracity of their claim that their purported appointment was confirmed by the 4th defendant. Furthermore, the claimants have claimed a declaration that they are entitled to their salaries, allowances and other entitlements as members of the 4th defendant without stating the exact amount they are entitled to. It is the submission of counsel that the suit of the claimants is mainly declaratory, and that the burden of proving that the claimants were properly and duly appointed as members by the 1st defendant and that the defendants were in breach of certain statutory provisions in the determination of their appointment rests with the claimants. See the cases of Offoelo vs. NEPA (2005) All FWLR (Pt. 285) 545 @ 560 paras E-F. Igbinovia vs. UBTH (Supra) at 1762 paras D-E. The law is that a claim for declaratory reliefs is discretionary. It should be granted only in circumstances in which the court is of the opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the court’s discretion in his favour Egbunike vs. Munonueokwe (1969) 1 All NLR 46. The courts in the exercise of their discretion to grant declaratory reliefs must be satisfied on the evidence adduced by the party sufficient to establish his legal or equitable right thereto. Thereafter, the court will consider whether there are grounds which would militate against the grant of the order or relief. See the cases of: 1. Oduola vs. Cooker (1981) 5 S.C. 197; 2. Obawale vs. Williams (1996) 10 NWLR (Pt. 477) 146 @ 170; 3. Okereocha vs. Ministry of Commerce & Tourism (2000) FWLR (Pt. 25) 1729 @ 1742 paras F – G. On the other hand, counsel submitted that if an assumption exists that the claimants were duly appointed as members of the 3rd defendant and they were wrongly removed by any of the defendants, the settled law is that any person who has the power to appoint also reserves the right to remove. See Section 11 of the Interpretation Law, Laws of Eastern Nigeria 1963. Furthermore, assuming that the claimants were properly appointed as members of the 3rd defendant for a five year tenure from the date of their inauguration 24th February, 2010 to 24th February 2015, but were wrongly removed before the expiration of their tenure; their said tenure having elapsed on 24/2/2015 due to effluxion of time, the pertinent question posed by counsel at this juncture is: whether there is still a live issue to be determined in this suit by this Court? The answer counsel provided with respect to the question is in the negative. The submission of counsel in this regard is that judicial authorities are in agreement that once the tenure of any statutory appointment/elected person elapses due to effluxion of time, any action for wrongful removal abates. In the case of Badejo vs. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15, the apex court per Kutigi, JSC (as he then was) held as follows:- “Certainly if the declaration and orders sought by the appellant were all founded and based on the appellant’s eligibility to be called for interview on 8th October, 1988, for admission into Secondary I in Federal Government Colleges in 1989, the Court of Appeal must be right when on 8th January 1990, some 15 months after the interviews, it was held that the subject matter of the appeal had been overtaken by events and that there was nothing left for the High Court to try and therefore struck out the suit in its entirety. It will in my view be subversive for a court of law to claim to determine disputes where none existed or has ceased to exist”. The above authority was cited with approval by the apex court in the case of Hon. Bimbo Adepoju & Ors vs. Oyo State Independent Electoral Commission (OYSIEC) (2012) All FWLR (Pt. 624) 26 @ 41 paras E – G per Galadima, JSC as follows:- “It is not in dispute that the appellants’ three years term of office as chairman of their various Local Government Councils ended on 24th May, 2010 due to the effluxion of time and that by 25th May 2010, their action had abated and was liable to be struck out. As at 18th June 2010 when the application to strike out or dismiss the claim was filed and on 27th July 2010 when the notice of appeal was filed, there was no longer enforceable legal rights and obligations. In the light of these circumstances, granting all or any of the declaratory and injunctive reliefs would be mere exercise in futility. In other words, for this court to allow the appeal is to create a new term of office of the appellants of 3 years in place of their lost term”. According to Counsel, by their own evidence, the claimants said they were sworn in on 24/2/2010 for a five-year tenure. Therefore by 25/2/2015, there was nothing more to determine in this suit save to strike out same as the live issues had ceased to exist. He urged the court to so hold and to dismiss this suit for failure to prove same; or in the alternative, strike out same, the action having abated as a result of effluxion of time. The 3rd defendants’ written address filed on the 16th day of March 2015 formulated the following two issues for determination: a. Whether the claimants have made out any case against the 3rd defendant as to entitle them (the claimants) to any of the reliefs sought in this matter against the 3rd defendant. b. Whether the 3rd defendant has in any way acted wrongly and unlawfully in its relationship with the claimants as to make the 3rd defendable liable to the claimant as claimed. The arguments of the issues raised by counsel were addressed through the lens of the reliefs sought by the claimants. Counsel submitted that the 1st relief claimed by the claimants of “a declaration that the Tenure of office of the claimants as members of the Imo State Independent Electoral Commission is subsisting; and shall expire in 2015” will amount to an elongation of the tenure of the claimants contrary to the constitutional provisions and their own evidence. The Imo State Independent Electoral Commission (State Independent Electoral Commission) is a product of Part IIB to the third schedule to the 1999 constitution of the Federal Republic of Nigeria (as amended). Its establishment, membership, tenure, qualification for membership and removal of members are as contained in Sections 197(i) 199, 200 and 201(i) of the same Constitution, thus the Claimants are public servants. The claimants’ evidence is that they were appointed on 4th February 2010 and were sworn in on 24th February, 2010 for a five years tenure ending on 23rd February 2015. See paragraphs 8 and 9 of the Statement on Oath of claimants’ witness – Paul Ogujiofor. See also Section 199(i)(C) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Their tenure expired since 23rd February, 2015. It is no longer subsisting. It will not expire in 2015. It has already expired on 23rd February, 2015 Flowing from the foregoing, counsel submitted that any order made by this Court to declare that the tenure of office of the claimants with the 3rd defendant is still subsisting and shall expire in 2015 will be improper and unjustifiable because several judicial authorities have decided that the court of law cannot elongate tenure of Public Officers. Also The Constitution of the Federal Republic of Nigeria, 1999 did not grant the court the power to grant an extension of tenure to any public officer who has been removed howbeit improperly. To hold otherwise would amount to reading into the constitution, provisions that are alien to it. This position is also applicable to elected public officers such as Local Government Chairmen, Governors etc; see Ladoja vs. INEC (2007) 40 WRN 1 at page 43 lines 30 – 35, pages 51 – 52; Hon. Bimbo Adepoju & Ors vs. Yinka & Ors (2012) 49 NSCON 761. In effect, Section 199(1) (C) and 201(1) and (2) of the 1999 Constitution of the Federal Republic (as amended) does not permit or grant the court any power(s) to grant tenure elongation to the claimants assuming but not conceding to the fact that they were wrongly removed from office. On the basis of these assertions, counsel urged the court not to grant relief 1 of the claimants’ claim. Counsel argued that the 2nd and 3rd reliefs of the claimants have not been proved by the claimants to warrant an order of court entitling them to same. In substantiating this argument, counsel submitted that before the claimants could be entitled to their salaries, allowances and other entitlements as members of the 3rd defendant from June 2012 when they stopped work until the expiration of their tenure of office, they must first prove that their removal from office as members of the 3rd defendant was unconstitutional, null and void. It is in evidence that the claimants were appointed as members of the 3rd defendant through letters from the office of the Secretary to the Government of Imo State dated 24th February, 2010 – Exhibits CC – CC4. The law is trite that in an action for wrongful termination of appointment, the claimant must PLEAD and PROVE certain material facts as follows: (i) That he is employed by the defendant; (ii) The terms and conditions of his appointment including duration and termination; (iii) Who can appoint and remove him; (iv) The circumstances under which his appointment can be terminated; (v) That his appointment can only be terminated by a person or authority other than the defendant; See Adams vs. Lagos State Development & Property Corporation (LSDPC) (2000) 5 NWLR (Pt. 656) 291 at 293 Ratio 1. The Statement of Claim of the claimants in this case is of 14 paragraphs. Paragraph 6 is in relation to the claimants appointments as required by (a) above. Paragraph 7 is on the duration of their appointment. This satisfies part of (b) above. There are no pleaded facts and evidence as to the requirements/conditions stated in (c) (d) and (e) of the principles. This, Counsel contends, by counsel is very fatal to the claimants’ case, and puts the instant case on all fours with Adams vs. LSDPC (supra) cited above. In that case, the appellant pleaded requirements (a) and part of (b) as did the claimants in this present case. The court held thus: “In the instant case, facts relating to “a” and partly “b” were duly pleaded. There are no facts averred to part of “b”. “c”, “d” and “e”. The appellant did not therefore plead and prove all the relevant elements of the contract allegedly breached by the respondent”. The court continues: “Facts which show the circumstances under which an employee’s appointment can be terminated and the authority which has powers to terminate, do constitute very material facts which an employee seeking redress for wrongful termination of employment must plead and prove by evidence. Failure to do so will lead to a dismissal of the claim. In the instant case, there being no pleadings and evidence on material facts before the trial court, the court rightly demised the claim” (underlined ours for emphasis) (see page 316 paras. C – G; reduced as ratios 1 and 2 at pages 293/294. “Pleadings are the foundation of good advocacy. Where the foundation is faulty, nothing and absolutely nothing could be placed on it”. Per Munkata–Comassie JCA in Nwarata vs. Egboka (Supra) at 267 paras C – D reduced as ratio 8 at page 248. Consequently it is counsel’s submission that the claimants never pleaded and proved the material facts in relation to their allegation of wrongful termination of appointment as enumerated in Adams vs. LSDPC (supra) at 293 ratio 1 (a) – (e), and Ratio 2. On this score alone, reliefs 2 and 3 of the claimants claim is unsubstantiated. Counsel urged the court to dismiss the claimants’ case. Similarly, it is in evidence that the claimants relied on the publication in the “Announcer Weekend” of 25th – 27th May, 2012 (Exhibit CC6) to stop coming to work. The said publication in the paper was to a purported swearing-in of a new chairman and members of the 3rd defendant. It was placed in the said paper on 25th May, 2012. From the 26th May, 2012, the claimants abandoned their respective offices and absconded from duty. Also, according to Counsel, it is obvious that the claimants were not appointed by newspaper publication. It was therefore wrong for the claimants to abandon their offices, relying on newspaper publications to allege termination of their appointment and to stop coming to work. Even the said publication did not state that the claimants’ appointments had been terminated or that the claimants should stop going to work. There was no communication to the claimants that their appointments had been terminated (see generally paragraph 11 of the claimants’ witness Statement on Oath and paragraph 6(b) (c) (e) of the 3rd defendant’s witness Statement on Oath). The claimants also did not communicate to the 1st and 2nd defendants (their employers) of the publication allegedly swearing-in new members and chairman of the 3rd defendant or communicated to the 3rd defendant where they were working. Claimants’ witness admitted all these facts during his cross-examination on 19/6/2014. The claimants’ witness deposed in paragraph 14 of his Statement on Oath inter alia: “14 each time I, and my co-claimants, went to our offices at the 3rd defendant thereafter, we found that we could no longer gain access to them, and staff of the 3rd defendant were not helpful…” The witness did not explain or state how they could not gain access to their offices or who refused them access to their offices. During the cross-examination of claimant’s witness by learned counsel for the 3rd defendant on 19/6/2016, the witness said it was a messenger that refused to open their offices for them. Counsel’s submission is that the claimants absconded from their offices after the purported Newspaper publication on 25th May, 2015 till 6th June, 2012 when they were written letters to return the official cars attached to their respective offices. Sequel to this, they visited their offices on 7th June and duly returned the cars on 11th June, 2012 (See paragraphs 12, 13 and 14 of claimants witness Statement on Oath. See also Exhibits CC6 – CC9, CC10 – CC13 respectively). Counsel went on that the case of the claimants is contradictory because while they seek the relief of “A declaration that the purported removal of the claimants from office as members of the Imo State Independent Electoral Commission is unconstitutional null and void” (see paragraph 17 (3) of the claimants witness Statement on Oath) during cross-examination of the claimants’ sole witness on 19/6/2014 by learned counsel for the 3rd defendant, claimants witness answered “we have not been removed from office in June and July and up till now”. The question raised by counsel at this point is; which removal of the claimants from the office of the 3rd defendant are they requesting this court to declare as unconstitutional, null and void? Since they admitted on cross-examination that, they “have not been removed from office up till now”? The main plank of the claimants’ case and their claims is the allegation that their removal from the 3rd defendant is unconstitutional, null and void. That is the root upon which all the claimants’ other claims are hinged. Now a witness called by the very claimants and indeed one of the claimants in the case, admitted and told the court that they (claimants) have not been removed “... up till now”. The law is trite: there is no better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of that party. NIKI TOBI JSC puts it more succinctly: “If a witness called by a party gives evidence against that party, the evidence will be regarded as one against interest. See general Ojiegbe vs. Okwaranyia (1962) All NLR 605. Unless explanations are given which satisfy the court that the admission should not be regarded, due weight should be given to them as such…” see ODI vs. Iyala (2004) 4 SCNJ 35 at 51 paras 7 – 14, reduced as ratio 4 at P. 37. On the strength of these assertions put forward, counsel urged the Court to accord due weight to the piece of evidence that the claimants have not been removed from the 3rd defendant up till now, and therefore dismiss reliefs 2 and 3 and indeed, all the reliefs sought by the claimants on this ground. As regards relief 2, counsel submitted that the claimants are not entitled to any salaries, allowances and other entitlements as members of the 3rd defendant from June, 2012 to any other date for that matter because The claimants have not proved that they were wrongfully and unlawfully removed from office the of the 3rd defendant. Rather, the claimants abandoned and absconded from their duties upon reading from a newspaper of a swearing-in ceremony of chairman and members of the 3rd defendant and the non-opening of their respective offices by a messenger. Also, paragraph 10 of the claimants’ witness Statement on Oath indicates that the claimants were paid in May 2012. Relying on the publication of May 25 EXHIBIT CC5, the claimants believing that they had been relieved of their appointments, showed up on 6/6/2012 and collected letters requesting them to return the cars attached to their various offices. They did so between June 11th and 12th and initiated this action on 16th August 2012 first, at the State High Court and then before this court. The Claimants did not work from the month of June 2012. Their refusal to work is the basis of denial of their said salaries and other entitlements. As was admitted by claimants’ witness during cross-examination by learned counsel for the 3rd defendants, “salaries are paid to staff who work for it”. Furthermore, counsel submitted that the court ought not to grant the fourth relief sought by the claimants for an order reinstating the claimants to their office as members of the Imo State Independent Electoral Commission. The rationale for this submission arose from the evidence on record that the claimants were appointed and sworn in on 24th February, 2010 for a term of five (5) years. Therefore the claimants’ term elapsed on 23rd February, 2015. Any reinstatement ordered by the court will have the effect of extending a term of office that has expired by operation of law, and a court of law cannot order for an extension of tenure of public office holders. Similarly, the termination of appointment either wrongly or rightly is intended always to end any job or assignment one is holding, or for the time doing. The issue as to whether the person whose services have been terminated accepts it or not does not arise. Even if the person whose appointment has been brought to an end (by a letter of termination) challenges it in court, that does not mean that the employer had any other intention than to put an end to the job description held by the subject of the letter of termination. Therefore, when an employer brings the contract of employment to an end by terminating it, the employee effectively ceases to be in the employment; and his subsisting, rights, if any, are to make a claim for the terminal benefits as provided in the contract of employment. The employee cannot at his option, keep alive a contract of employment, which has been determined by the employer. In effect, a master cannot be compelled to retain the services of his servant. No court can impose an employee on the employer. The only remedy available to the servant is an action in damages. See the cases of Jombo vs. Petroleum Equalisation Fund (Management Board) (2005) 14 NWLR (Pt. 945) 443 at 447 ratio 1; Lake Chad Research Institute vs. Mohammed (2005) 11 NWR (Pt. 935) 1 at 5 ratio 6. It is counsel’s contention that it will be inequitable and wrongful for a court of law to order that the claimants be taken back and be reinstated after almost three (3) years of their abandoning their offices. In addition the fifth, sixth and seventh reliefs are injunctive in nature. And in praying for any injunction, the applicants (in this case the claimants) must satisfy the court that they have a subsisting legal right which has been threatened, under threat or about to be threatened by the 3rd defendant and of which they pray this court to protect. In the instant case, there is no evidence – oral or documentary alluding to any existing rights of the claimants howbeit minute, which is under threat or about to be threatened and to which the judicial powers of the court need be invoked to protect by way of injunctive reliefs as prayed. Counsel submitted that the claimants have no rights – legal or equitable – worthy of protection by way of injunction by this court because, their tenure has expired. Any right they had was tied down to and associated with their five-year tenure with the 3rd defendant. Once that term expired, the claimants have no more rights with the 3rd defendant worthy of protection by injunctive reliefs. In Hon. Bimbo Adepoju & Ors. vs. Olona Yinka & Ors. (2012) 49 NSCQR 761, the Supreme Court when considering a similar situation – i.e. the effect of the expiration of the terms of office of public servants (Chairman of Councils in Oyo State) vis-à-vis that of their legal rights to interlocutory reliefs and extension of their tenure when their tenure expired held, inter alia, as follows: “…in the instant appeal under consideration, however the rights and obligations sought to be enforced are no longer available, the three years of office of the applicants as chairman of their various Local Government Councils having expired.In the instant case, the appellants terms of office as chairman of their various Local Government Councils ceased to exist at the end of 24th May, 2010, there were no longer enforceable rights and obligations. In such circumstances granting all or any of the declaratory and injunctive reliefs would be an exercise in futility” (Per FF TABAI JSC at PP 780, 782 – 783 Paras. E – G & H – A respectively). Counsel, on the strength of the foregoing, urged the court to hold that the terms of the claimants in this case having expired on 23rd February 2015, there are no more enforceable rights and obligations. And assuming there were any of such rights, the balance of convenience is in favour of refusing such a prayer than in granting it. This is more so when the claimants have no legal right to ask for injunction coupled with the fact that damages (if any) will be adequate to assuage the claimants. According to Counsel, the Claimants have not shown this court why this relief should be granted. They are to show what they stand to gain or lose vis-à-vis the defendants on the grant or otherwise of this relief (Balance of Convenience). The Balance of Convenience is the disadvantage to one side or the other which damages cannot compensate. See the case of Enunwa vs. Obianukor (2005) 11 NWLR (Pt.935) 100 at 106 Ratio 8. The balance of convenience that will be protected cannot be any fancied ego or personal pride of an applicant but a substantial right that is fit for legal protection. It should not be sentimental. See the case of Falowo vs. Banigbe (1998) 6 SCNJ 42 at 47 ratio 16. See also DPMS Ltd. vs. Larmie (2000) 5 NWLR (Pt. 655) 138 at 155 para B; reduced as ration 14 at P. 143). Per Aderemi JCA “Sentiments have no place in judicial deliberations…and it must be borne in mind that sympathy is not always a good forerunner for justice.” In arguing the second issue, counsel is of the view that the spark that lit the fire of this suit was the publication in the “Announcer Weekly” of 25th - 27th May 2012 on the swearing-in of Chairman and members of the 3rd defendant, which the Claimants interpreted to be the termination of their appointment. The 3rd defendant therefore cannot be held liable for any consequences emanating from the publication that was not placed by the 3rd defendant. Also Exhibits CC1 – CC3 (the letters of appointment of the claimants as members of the 3rd defendant) show that it was not the 3rd defendant that appointed the claimants; and having not appointed them, the 3rd defendant has nothing to do with any alleged termination of the services of the claimants. One cannot terminate the appointment of any person whom he did not appoint. The 3rd defendant cannot also be found wanting and liable to them for the salaries, allowances and other entitlements which the claimants have urged the court to declare that they are entitled to; because from the claimants’ pleadings and evidence, their salaries, allowances and other entitlements were not paid by the 3rd defendant. The only mention of claimants’ salaries and allowances are in Paragraph 8 of the Statement of Claim and Paragraph 10 of the claimants’ witness’ Statement on Oath. For ease of reference these paragraphs are reproduced hereunder: “8” the claimants performed their duties, and earned their salaries and allowances. Their salaries and allowances were paid for the month of May, 2012 by the Government of Imo State of Nigeria due to the action of the defendants, subject matter of this suit” “10” upon appointment and swearing-in each of us, the claimants, assumed duties and earned our salaries and allowances from that time until, May 2012 when we were last paid by the government of Imo State of Nigeria” Indeed, the 3rd defendant gave evidence to the fact that it is not responsible for them: “That the 3rd defendant is not responsible for the payment of salaries and allowances of the claimants and therefore is not aware when the salaries and allowances of the claimants were stopped by the 1st defendant. 3rd defendant did not take any action that necessitated the alleged stoppage of the salaries and allowances of the claimants. It is not the responsibility of the 3rd defendant….” (See paragraph 5 of 3rd defendant’s Statement of Defence and also paragraph 5 of the Statement on Oath of 3rd defendant’s witness). According to counsel, these statements are not denied, not challenged and not contradicted. It is an elementary principle of law that such unchallenged and un-contradicted evidence should be accepted and acted upon by the court. See the cases of Onwuka vs. Omogui (1992) 3 SCNJ 98 at 101 Ratio 1 (Per Nnaemeka – Agu, JSC); Eligushi vs. AG. Federation (2000) FWLR (Pt. 1) 89 at 99 Ratio 17. It is counsel’s submission that the 3rd defendant has done nothing untoward to warrant an order of this court holding it responsible for the alleged salaries, allowances and other entitlements of the claimants. The only step taken by the 3rd defendant was to request the return of the cars attached to the respective offices of the claimants from the claimants. 3rd defendant pleaded and gave evidence in this respect thus: “..(a) That having waited from 26th May, 2012 to 5th June, 2012 the 3rd defendant had no options than to request that the claimants return the official cars attached to their respective officers”. “(b) That it would be unfair for the claimants who abandoned their respective offices to still hold on to the official cars attached to them in respect to those offices”. “(c) That since the claimants have chosen to vacate and abandoned their office as stated, they were instructed to return the official cars. Claimants cannot shield away from the responsibilities of their office and at the same time. Expect to hold on the packs attached thereto”. (See paragraph 7 (a) – (c) from paragraph 7 (a) – (c) of the 3rd defendants Statement of Defence) claimants did not deny this. The evidence was also not challenged or contradicted. The other allegation made by the claimants as concerning the 3rd defendant is that of a messenger not opening the claimants’ offices for them. The Claimants did not mention the name of the ‘messenger’, neither did they state when the incident happened nor state that the “messenger” was acting on authority. The statement was not supported by evidence. Such statements unsupported by credible and admissible evidences are of no legal consequence and should not be acted upon by a court of law. See the case of SADARE vs. IPAJA COMMUNITY BANK (2007) 6 CLRN 147. This allegation was not pleaded by the claimants and evidence thereto, howsoever couched and extracted goes to no issue. The argument of counsel is that adjudicatory laws are aimed at justice and at remedying wrongful acts; hence the maxims ubi culpa est, ibi poena subesse debet - where the fault is, there the punishment should be also. Conversely, where there is no fault, there should be no punishment and ubi cunque est injuria ibi damnum sequiture – where there is a legal wrong, there damages follows. Conversely also, where there is not legal wrong, a court of law and equity is forbidden from imposing any damages and also ubi jus ibi remedium – where there is a breach of the law, remedies must be. See OYEKAN vs. NEPA (2000) 12 SC (Pt. 1) 70 at 84 paras 35 – 40. And in the extant case because the defendant has not committed any wrong against the claimant, the claimant will not be entitled to an award of his claims/reliefs –. See Adene vs. Dantunbu (1994) 2 SCNJ 130 at 151 paras. 1 – 5 per Uwais JSC. Consequently, the court was urged to hold that since the 3rd defendant has not committed any wrong or breach against the claimants, it will be unjustified to make any order(s) or any award or grant any of the reliefs claimed by the claimants against the 3rd defendant in light of which is appropriate to dismiss the instant case with substantial cost, against the claimants. In the claimants’ counsel’s written address filed on the 9th day of March 2015, counsel raised two issues for determination in this suit, to wit: 1. Whether the claimants were removed from office as members of the Imo State Independent Electoral Commission (ISIEC) unconstitutionally. 2. Whether the claimants are entitled to the salaries and allowances, etc. attached to their office as members of ISIEC during the constitutionally guaranteed tenure. Counsel established in his argument of the first issue that the 3rd defendant is a body established by the constitution of the Federal Republic of Nigeria 1999 as amended, as one of the State Executive Bodies. See Section 197(1) of the 1999 Constitution (as amended). The tenure of office of the members of ISIEC is also stipulated in the Constitution. The relevant provision of the constitution in counsel’s view is Section 199(1) which states thus: “199(1): A person who is a member of any of the bodies established as aforesaid shall, subject to the provisions of this part, remain a member thereof. (a) In the case of a person who is a member otherwise than as an ex-officio member or otherwise than by virtue of his having previously held an office for a period of five years from the date of his appointment.” In paragraphs 1, 6 and 7 of the statement of claim, the claimants averred interalia that they were appointed as members of the 3rd defendant by the 1st defendant, and sworn in on 24/2/2010 for a period of five years. The 1st defendant who made the appointments of the claimants did not reply in their statement of defence specifically to paragraph 1 of the statement of claim which averred the appointment. But the 3rd and 4th defendants, in their respective pleadings, admitted the averments that the claimants were so appointed, and it was for a term of five years. The court was urged to hold, on the state of the pleadings, that the parties are ad idem that the claimants were appointed by the 1st defendant to be members of the 3rd defendant for a period of five years. See Lewis & Peat N.R.I. Ltd. vs. Akhimien 1976 ANLR 365, 369 (Reprint). the claimants, through PW1, tendered their letters of appointment in evidence, and they were admitted, without objection, and marked as Exhibits “CC1 – CC4”. The first paragraph of each letter states: “His Excellency, Chief (Dr.) Ikedi Godson Ohakim (KSC) the Governor of Imo State has approved your appointment as Member, Imo State Independent Electoral Commission, Owerri”. There is no of evidence from the defence, especially the 1st defendant, to suggest that the 1st defendant did not authorize Exhibits “CC1 – CC4”. In further proof of their appointment, PW1 testified in accordance with paragraph 8 of their statement of claim that they earned their salaries and allowances, paid by the Government of Imo State. No question was raised against this assertion throughout the lengthy cross-examination of the witness. It is, therefore, deemed admitted by the defence. See Omoregbee vs. Lawani (1980) 3 – 4 S. C. 108, 117. Having regard to the evidence of the parties on the issue of payment of salaries and allowances particularly DW2 (witness of the 3rd defendant), who admitted during cross-examination on 2/12/2014 that the salaries and allowances of the claimants were paid directly by the Government House, Owerri. Counsel urged the court to hold that not only were the claimants appointed to the office of members of the 3rd defendant, they (claimants) received the salaries and allowances attached to the office. Counsel emphasized that the issue of payment of salaries and allowances does not affect the validity of the appointment of the claimants, especially having due regard to the 4th defendant’s averment, in paragraph 4 of its statement of defence that “non-payment of staff salaries is due to the meager State revenue”. Having proved the appointments and payment of salaries and allowances, counsel contends that paragraphs 4 and 5 of the 1st and 2nd defendants’ statement of defence that the appointments of the claimants were inconsistent with the Constitution is a clear case of Mala Fide. Section 198 of the Constitution provides that appointment of the Chairman and members of the 3rd defendant and related bodies shall be made by the 1st defendant and the appointment confirmed by a resolution of the House of Assembly of the State. The section reads: 198. Except in the case of ex-officio members or where other provisions are made in this Constitution, the chairman and members of any of the bodies so established shall subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State. In paragraph 6 of the Statement of Claim, it is averred that the claimants’ “appointments were confirmed by a resolution of the 4th defendant”. The 4th defendant concerned with this averment, admitted this statement unequivocally in paragraph 1 of its statement of defence. So, between the claimants and the 4th defendant, there is no dispute that the claimants’ appointments were confirmed by the 4th defendant. See Lewis & Peat (N.R.I.) Ltd. vs. Akhimien (supra); Okafor vs. INEC (2010) 3 NWLR (Pt. 1180) 1, 49D – 50B. In the light of this, there is no need for further proof of the resolution, as contended in paragraph 1.14 of the 1st and 2nd defendants address. Counsel submitted that once the appointment of a member of the 3rd defendant is proved or established, the consequence as a matter of law is that he is entitled to remain in office for a period of five years. See Section 199(1) (C) of the Constitution. The exceptions are where the appointee dies, or is removed from office as specifically provided by the Constitution. Thus the 1st and 2nd defendants contention, in their Written Address, especially in paragraphs 1.04 – 1.09 thereof, that the claimants failed to discharge the burden on them to prove the terms and conditions of their appointment, and that that failure led to their failure to prove their case is misconceived because Section 169 of the Evidence Act, 2011 relied on deals with estoppel, thus irrelevant to the facts of this case. Secondly, the claimants’ proof of their appointment by both pleadings and evidence is sufficient. The reference in their letters of appointment to another circular for “conditions of service” is of no moment in the context of this case. The issue in this case is whether the removal from office of the claimants is in accordance with Section 201 (1) (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The implication of this is, because the issue to be addressed is the constitutionality of the defendants’ acts, no other document or material is relevant in the determination of the issue. Thus, any other “condition of service” which is in conflict with the constitutional provision is null and void. See Section 1 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Counsel submitted therefore that this constitutionality of the defendants’ acts is what distinguishes the instant case from the cases of College of Medicine vs. Adigbule (Supra), 1973 ANLR 434 and Igbinovia vs. UBTH, (supra) also, (2000) 8 NWLR (Pt. 667) 53 cited by the defendants. The above cited cases are distinguishable both on the facts of the cases because of the lack of constitutional flavour on the appointments in the cited cases. Thirdly, the necessary ingredients of the claimants’ case, enough to prove their case and earn judgment, have been placed before this honourable court. The case of Uzoho vs. Task Force on Hospital Management (supra) also (2004) 5 NWLR (Pt. 867), relied on by the 1st and 2nd defendants, is irrelevant as it concerned a complaint of a party whose duty it was to compel the production of a document, and failed to do so. Fourthly, the claimants enjoy the presumption of regularity/validity of their appointment, having regard to the common ground of their appointment and payment of salaries and allowances, provided in section 168 (1) (2) of the Evidence Act, thus: 168 (1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. (2) When it is shown that a person acted in a public capacity, it is presumed that he had been duly appointed and was entitled so to act. The case of the claimants, as indicated in Paragraphs 8, 9, 10, 11, 12 and 13 of their Statement of Claim, is that the claimants read in the media that a new Chairman and members of the 3rd defendant had been purportedly sworn in; that they did not receive any communication from the defendants on their purported removal from office; that they could not gain access to their office; they could not receive their salaries; they were not allowed to perform their duties; they were directed to return their official vehicles to the Administrative Secretary of the 3rd defendant, which they did to avoid harassment. The reaction of the defendants to these allegations is divergent. For instance, the 1st defendant admits that the claimants’ official vehicles were recovered from them “for inventory and record purposes”. See paragraph 9 of the 1st and 2nd defendants’ statement of defence. In this regard, the 3rd defendant, however, avers that the claimants had to return their official cars because they had allegedly abandoned their duties. A common thread that seems to run through the stance of the 1st, 2nd and 3rd defendants is that the claimants abandoned their duty posts, and that appears to be the justification for their purported removal. It is submitted that this allegation has not been proved. There is evidence of a news publication in the “Announcer Weekend” newspaper, Exhibit “CC5” that a new Chairman and members of the 3rd defendants had been purportedly sworn in, followed by the inability of the Claimants to gain access to their offices. DW2 admitted that she was in charge of the security and management of the offices of the Chairman and members of the 3rd defendant, and authorized the subordinates to keep the offices under lock and key, thereby showing that the claimants did not have unrestrained access to their offices. There is also evidence that, in addition to the above scenario, the 3rd defendant demanded from the claimants, through their Director of Legal Services, the return of their official vehicles “attached to their former office” (Exhibits CC6 – CC9). All these pieces of evidence, notwithstanding the vigorous cross-examination of CW1, point unequivocally to the forceful, though illegal, removal of the claimants from office. These pieces of evidence and their significance are confirmed by the evidence, in cross-examination, of DW2 that the 1st defendant purportedly appointed Barrister T. O. Akwari as Chairman, and other persons as members of the 3rd defendant from June, 2012 (when the claimants said their salaries and allowances were stopped) to September, 2013 when they were replaced by Rt. Hon. Amaechi Nwaoha as Chairman, and six other persons as members of the 3rd defendant. In other words, evidence of DW2 confirms the forceful removal from office of the claimants by purported replacement by other persons. The contention of the 1st and 2nd defendants in paragraph 1.13 of their written address that the claimants should have subpoenaed the “alleged new chairman” or a member of the 3rd defendant to show that they had replaced the claimants is unnecessary because the defence, per DW2, has conceded the ‘appointments’ of those persons to supplant the claimants. It is trite law that what is admitted needs no proof. Also, the 1st and 2nd defendants have, in paragraphs 1.10 – 1.13 of their written address, contended that Exhibit “CC5” (the “ Announcer Weekend” newspaper) is not in an admissible form primarily on the ground that the newspaper is a public document; thus a certified true copy of it is what can be admissible as secondary evidence. Counsel argued that Exhibit “CC5” is not the official act or record of the official act of the sovereign authority, official body and tribunal, or of public officers of any description. It is not also a public record of a private document. It therefore falls squarely within the purview of Section 103 of the Evidence Act as a private document which requires no certification. The case of the claimants, per paragraph 9 of the Statement of Claim, is that exhibit “CC5” reported a news item. There is no averment that it is an official publication. This legal situation is explained in Ho vs. 1 & S International Ltd (2005) All FWLR (Pt. 254) 822, 828 C – G where Alagoa, JCA (as he then was) said: “….. Mr. Achimugu referred to the Newspaper as a public document and as such should have been certified and being not certified, should be discountenanced. Public documents are dealt with under Section 109 of the Evidence Act, Laws of the Federation of Nigeria, 1990 as follows…. Exhibit 1 – THISDAY Newspaper of the 10th May, 2002 does not fall into the category of documents covered or referred to as public documents under Section 109 of the Evidence Act…. Newspapers and magazines in Nigeria and indeed the world over have come to command such aura of respectability and reliance among the reading public that surprisingly, even among learned gentlemen of the legal profession, the tag “public document” is better ascribed to them than “private document”. This is a wrong concept as far as the Nigeria Law of Evidence is concerned; they are not public documents but private documents.” The cases of Oneh vs. Obi (1997) 7 FWLR (Pt. 611) 467; Ngige vs. Obi (2006) 14 FWLR (Pt. 999) 1, 167 – 168; Agbai vs. INEC (2009) All FWLR (Pt. 449) 594, 612 relied on by the 1st and 2nd defendants in this context do not apply to the issue of whether a newspaper is a public document as directly dealt with in HO, (supra). Rather, they dealt with the provision of Section 116 (now section 148) of the Evidence Act. Section 148 of the Evidence Act, 2011 which is now significantly, differently worded from the former Section 116 of the Evidence Act does not provide that a newspaper, to be admitted in evidence, must be tendered by, or produced from, the publishers or registrars of newspapers. Indeed, having regard to the tenor of Section 148 of the Evidence Act, this Court should presume the genuineness of Exhibit “CC5”. For ease of reference, Section 148 provides: 148. The court shall presume the genuineness of every document purporting to be”- (a) The official Gazette of Nigeria or a State; (b) The official Gazette of any country other than Nigeria; (c) A newspaper or journal; (d) A copy of the resolution of National Assembly or House of Assembly of a State. Printed by the Government Printer or (e) A copy of a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. Counsel urged the court to discountenance the contention of the 1st and 2nd defendants and submitted that, by tendering Exhibit “CC5” in evidence, the claimants have not vouched for the news items therein, but the fact of its publication. It is a piece of evidence which when considered along with other pieces of evidence, will lead the Court to the conclusion that the 1st and 2nd defendants engaged in the act of removal of the claimants from office. Without exhibit “CC5”, there still exists evidence to justify the assertion that the 1st and 2nd defendants engaged in the act of removal of the claimants from office. The question posed by counsel that arises from this state of affairs is whether the 1st defendant can rightly appoint other persons to replace them without, first, removing them from office constitutionally? Counsel submitted that in so far as the claimants still claim to be in office, the burden of proving that they have been properly removed from office rests on the defendants especially the 1st defendants. Having regard to the evidence of the parties, the court was urged to hold that the defendants did not prove that the claimants abandoned their duty posts. The procedure for the removal of members of the 3rd defendant from office is provided for in Section 201 of the Constitution which states: 201-(1) Any person holding any of the offices to which this section applies shall only be removed from that office by the governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct. (2)This section applies to the offices of the Chairman and members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission. The stance of the 4th defendant is revealed in Paragraph 4 of its statement of defence which is that the “4th defendant further avers that there was no letter whatsoever from her termination (sic: terminating) the appointment of the claimants”. Loosely interpreted, this averment means that the 4th defendant did not approve of the removal of the claimants from office. Counsel submitted that in the absence of the concurrence of the 4th defendant, the 1st defendant has no power to remove the claimants from office even if, as the 1st, 2nd and 3rd defendants assert, the claimants abandoned their duty posts. The 1st defendant has not averred or given evidence that he sought for or obtained the approval of the 4th defendant in purporting to remove the claimants. Abandonment of duty comes within the purview of Section 201(1) of the Constitution where it provides that removal from office must be for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause). According to Counsel, the provision of Section 201(1) of the Constitution contemplates an unfortunate situation such as the facts of the present case where a government can prevent an appointee from exercising the duties of his office, and turn round to accuse the appointee of abandonment of duty. The removal of members of a State Executive Body, such as the 3rd defendant, is not a casual exercise. Reference was made by counsel to the case of Governor, Kwara State v. Ojibara (2007) All FWLR (Pt. 348) 854 where the Chairman and members of the Kwara State Independent Electoral Commission were purportedly removed upon the resolution of the House of Assembly of the State; yet the court held that the removal was unconstitutional because the reason for the removal did not come within the purview of the constitutional provision. The Supreme Court affirmed the decision on appeal. Oguntade JSC, in delivering the leading judgment, made the following illuminating statement, at pp. 876 – 877. “The tenure of the Governor of a State under the 1999 Constitution as well as that of the state legislature is four years. The constitution however grants the members of a State Independent Electoral Commission a tenure of five years. It ought not to escape attention that the deliberate purpose of the Constitution is to create an Electoral Commission, the lifespan of which exceeds those of the governor and the State legislature. This is done with a view to create continuity and stability in the electoral process and governance. The same is done in relation to the State Civil Service Commission and the State Judicial Service Commission. It is not the intendment of the Constitution that the membership of those commissions should change with the fortunes of the political parties in a State.” It is the law that an employment or appointment with statutory or constitutional flavour can only be terminated in strict compliance with the relevant statutory or constitutional provision, otherwise the termination of the appointment or removal from office would be declared a nullity, the consequence of which the declaration is that an order of reinstatement, where still possible, should be made. See Union Bank vs. Ogoh (1995) FWLR (Pt. 380) 647, 664 B – C. See also the case of Saliman vs. Kwara Poly (2006) 5 NWLR (Pt. 974) 477, 496 G. It has been shown that the defendants, especially the 1st defendant, did not comply with the provisions of the Constitution in purporting to remove the claimants from office. It follows that the removal is a nullity, and the claimants should ordinarily be restored to their office: Iderima vs. Rivers State C.S.C. (2005) 16 NWLR (Pt. 951) 378, 404 G – H, 414 G. In justification of the purported removal from office of the claimants, the 1st and 2nd defendants have argued in paragraph 1.18 of their written address that “the settled law is any person who has power to appoint also reserves the right to remove – Section 11 of the Interpretation law, Laws of Eastern Nigeria 1963”. The simple answer to this argument is that Section 201(1) (2) of the constitution which prescribes the strict method of removal from office overrides Section 11 of the interpretation law .the latter is void in so far as it is in conflict with the Constitution on this point. See Section 1 (3) of the constitution. Counsel submitted that The 1st and 2nd defendants’ argument that this suit has abated because the five year tenure of the claimants has elapsed due to effluxion of time is misconceived because the claimants filed this suit soon after their purported removal from office when they were half-way in their five year tenure. They sought reliefs, already set out above under ‘Statement of Facts’ and for no fault of the claimants, the trial of the case has lingered beyond the tenure of the claimants. In Adeyeye vs. Governor, Ekiti State (2012) All FWLR (Pt. 652) 1744 at 1782, a case concerning wrongful removal from office of Chairman and members of Ekiti State Independent Electoral Commission, one of the reliefs sought was a declaration, as in the present case, that the plaintiffs were entitled “to receive salaries and allowances attached to their offices… up till 22nd March, 2006 and 5th March 2008 respectively”. At the time judgment was delivered at the trial court, the tenure of most of the plaintiffs had expired, but at the Court of Appeal, at the instance of the plaintiffs who had appealed, the court noted the impracticability of restoring them to their office after allowing their appeal. It, rather granted them the “alternative relief that all their salaries and other allowances for the unexpired term of their office be paid to them”, in addition to declarations that their removal from office was unconstitutional. The above stance of the Court of Appeal was upheld in the recent case of Eze vs. Governor of Abia State (2014) 14 NWLR (Pt.1426) 192, 215 – 216 where the Supreme Court held that where reinstatement is not possible due to effluxion of time, the court would be right to order payment of entitlements to the plaintiffs even when not claimed expressly. In counsel’s opinion the case of Badejo vs. Federal Ministry of Education, supra and Adepoju vs. Oyo State Independent Electoral Commission, supra, relied on by the 1st and 2nd defendants does not apply in the instant case because Badejo’s case was a case of enforcement of fundamental rights, the complaint of the plaintiff concerned her exclusion from an admission interview held on a certain date in 1988. The High Court held that she had no locus standi. The Court of Appeal held that she had locus standi, but could not grant her reliefs because the interview in question had been held in 1988, whilst the judgment was delivered in 1990. On a further appeal, the Supreme Court upheld the decision of the Court of Appeal. The rationale of this decision may be gleaned at Pg. 41 D – E of the report: “Again Chief Ajayi’s submission that the Court of Appeal on 8/10/90 should have cancelled the whole exercise of the interview of 8/10/88 which affected the appellant and ordering fresh interview is to say the least, preposterous. Admittedly, the interviews were held on 8/19/88, the 1989 Academic year for Secondary – 1 had ended, and the 1990 Academic year for Secondary – 2 (former Secondary – 1) had already commenced when the Court of Appeal delivered its judgment on 8/1/90. In short, Chief Ajayi wanted the Court of Appeal to put the hands of the clock backward by 2 Academic years! The end result? Chaos! I repeat Chaos all over the country! No court should allow itself to be used as an in instrument of subversion under the guise of enforcing a fundamental right.” The Court was urged not to follow the decision in Adepoju vs. Yinka (supra) cited by the defendants because the facts are distinguishable; and secondly, the latter decision of the Supreme Court in Eze vs. Governor of Abia State, supra, delivered in July, 2014 should be followed as it is on all fours with this case. Undoubtedly, the claimants’ five years tenure which began on 24/2/2010 expired on 24/2/2015. For this reason, it would be impracticable to order their reinstatement as sought in the fourth relief in Paragraph 14 of their statement of claim. Also affected by effluxion of time are the fifth, sixth and seventh reliefs. However the first, second and third reliefs are still extant. In light of the foregoing, the Court was urged to resolve the first issue for determination in the affirmative, by holding that the claimants were not removed from office as members of the 3rd defendant (ISEC) constitutionally. As a result, reliefs (1), (2) and (3) in paragraph 14 of the statement of claim should be granted. Arguing the second issue, counsel submitted that there is no dispute that the claimants have not received their salaries and allowances since June, 2012 when they were purportedly removed from office. See paragraph 13 of the statement of claim, paragraph 11 of the 1st and 2nd defendants’ statement of defence, paragraph 9 of the 3rd defendant’s statement of defence and paragraph 4 of the 4th defendant’s statement of defence. The statements of defence reveal ambivalence on the issue of payment of salaries and allowances. However, the evidence of PW1 that the last salaries and allowances paid to the claimants were in respect of May, 2012 was not challenged or discredited. It should be believed. See the case of Omoregbee vs. Lawani (1980) 3 – 4 SC 108, 117. The law is that a person in a statutory or constitutionally flavoured employment who is wrongly removed from office and reinstated or his removal quashed, is entitled to his salaries, allowances and other entitlements. In a similar situation, in FMC, Ido – Ekiti vs. Olajide (2011) 11 NWLR (Pt. 1258) 256, 286 the Court of Appeal held: ... Having held that the learned trial judge was correct in ordering a reinstatement of the respondent, I do not know of any law that would justify his forfeiting all the salaries and allowances he would have earned all this while, from the date his appointment was wrongly terminated… the effect is that it is like the respondent had never left office, and would naturally be entitled to all his salaries and allowances as ordered by the learned trial judge. I cannot fault the said order. See also Adeyeye vs. Governor, Ekiti State (2012) All FWLR (Pt. 652) 1744, 1781 – 1782, a case concerning the wrongful removal of members of Ekiti State Independent Electoral Commission. The second relief sought in the statement of claim is a declaration that the claimants are entitled to their salaries, allowances and other entitlements as members of the 3rd defendant from June, 2012 until the expiry of their tenure of office. In evidence, PW2 tendered their letters of appointment, Exhibits “CC1 – CC4”, which disclose the salaries and allowances and other entitlements of the claimants. There is no suggestion by the defendants that the claimants had not been receiving the salaries, allowances and other entitlements from the time of appointment until their unfortunate and ineffective removal from office. The Court was urged to grant the order that the claimants are entitled to continue to receive the said entitlements from June, 2012 until the expiry of their tenure in February, 2015, as it is an order the Court would still have power to make as a consequential remedy for the unwarranted interference with the tenure of the claimants even if it was not specifically requested. In Eze vs. Governor of Abia State (2014) 14 NWLR (Pt. 1426) 192, the elected officials of the Local Government Councils in Abia State sought to quash the illegal dissolution of the councils and truncation of their tenure without specifically praying for payment of their entitlement. The court held that they were wrongly removed from office, but that they could not be reinstated because of effluxion of time. The Court of Appeal did not, however, grant them an order for payment of their entitlements. On appeal to the Supreme Court, it was held that the appellants were entitled to be paid their salaries, allowances, etc. from the time of their illegal removal from office until the expiry of their tenure as a consequential relief. Rhodes–Vivour, JSC. at pp. 215H – 216A stated thus: If such a person is removed from office in a manner the court finds to be wrong, he shall be entitled to all his entitlements, to wit salaries, allowances etc…Once the learned trial Judge was unable to order the reinstatement of the appellants because their tenure had lapsed, His Lordship was right to order that they be paid their entitlements in lieu of their reinstatement, since unpaid salaries are necessary and incidential to the relief seeking reinstatement. At p. 217 D – F, His Lordship concluded in this instructive manner: The appellants were elected members of Local Government Councils in Abia State as chairman, vice-chairman, and Councilors. It is unfortunate that they should come to court to ask for their entitlements…It goes without saying that the appellants ought to have been paid at the time the governor exercised strange and dictatorial powers unknown to our laws to bring to an end, the tenure of the councils members when their fixed term of office had not expired. In this situation, the equitable maxim becomes applicable. Equity regards as done that which ought to have been done. Since they were illegally removed as elected officials of the Local Government Councils, their entitlements should be paid to them. Counsel submitted relying on the above cited case that the claimants are entitled to be paid their salaries, allowances, etc. as shown in Exhibits “CC1 - CC4” from June, 2012 when they were denied them until the expiry of their tenure in February, 2015. As a result, the Court was urged to resolve the second issue for determination in the affirmative by ordering the payment of these entitlements to the claimant and give judgment to the claimants in terms of their reliefs (1), (2), (3) in paragraph 14 of their statement of claim. In the introduction of claimants’ counsel’s written address filed on the 26th day of March 2015 in response to the address filed by the 3rd defendant on 16/3/2015 but deemed properly filed on 19/3/2015,it was stated that the instant suit was transferred to this Court from The High Court on 5/8/2013. It was not struck out as stated in paragraph 1(a) (iii) of the Written Address of the 3rd defendant. Counsel proposed two issues for determination, to wit: (a) Whether the claimants are entitled to the reliefs they have claimed. (b) Whether the claimants have made out a case against the 3rd defendant. The argument of counsel in arguing these issues is identical to the argument canvassed in their written address filed in response to the written address of the 1st and 2nd defendants. As such those arguments being the same need not be reproduced here. Only Arguments not rendered earlier will be reproduced. Counsel particularly submitted that given the consensus that establishment, membership, tenure, qualification for membership, removal of members of the 3rd defendant is contained in Sections 197(i), 1999, 200 and 201(i) (See Paragraph 5(1) of the 3rd defendant’s written address), the contention of the 3rd defendant that did not plead who could appoint and remove them, the circumstances under which their appointment could be terminated amounted to requiring that the claimants should have pleaded the provisions of the constitution; which are not the functions of pleadings. The averred facts in numbered parts relies on to present his case, where a party is expected to plead material facts only and not law. It would have been improper, and contrary to the rules of pleadings, for the claimants to have pleaded the provisions of the constitution which the Court takes judicial notice of. Secondly, counsel’s submission that the 3rd defendant’s allegation that after the publication in the newspaper, the claimants abandoned their duty post; is untenable in the face of both the pleadings and the evidence before the Court. Paragraph 2 of the claimants’ reply to the statement of defence of the 3rd defendant, the claimants averred thus: In reply to paragraph 6 a – g of the statement of defence, the claimants aver that the allegation of abandonment of duty by the claimants is malicious and baseless; that impediment of access to the claimants’ offices at the 3rd defendant, demand for the return of the claimants’ official cars, non-payment of salaries and lack of formal communication to the claimants , together with the purported news item of appointment of some persons to their positions, constitute some of the ingredients of the unconstitutional removal of the claimants from office, subject matter of this suit. Under cross-examination by the 3rd defendant on 18/6/2014, the CW1 further said: Q - The publication in the Newspaper dismissed you, it wasn’t placed by the 3rd defendant. A - We did not say the publication dismissed us, but it was not placed by the 3rd defendant. Q - It was on the 7th, 8th and 9th June that you visited the commission A - On the 28th (Monday) we went to work, we worked until Friday the 1st of June. On the 6th we were given letters to return our official cars and on the same day we were paid our April and May salaries. We continued working 7th, 8th, 11th being Monday. On the 12th we returned our cars and one of us returned on the 15th of June. The significance of the above is that the claimants did not stop coming to work after the newspaper publication neither did they abandon their duty post as alleged by the 3rd defendant. Thirdly, it is the argument of counsel the 3rd defendant’s contention that the fact that since the claimants did not state who refused them access to their offices, no one removed them is unnecessary because the claimants proved their removal by tendering evidence of the appointment of other persons in their stead as shown in Exhibit CC5, (this piece of evidence was corroborated by the DW2), tendered Exhibits CC6 – CC9 letters to return cars) and that acknowledging receipt of the cars (Exhibits CC10 – CC13), lack of access to their offices, upon proof of these facts the onus shifted to the defendants to prove that the claimants abandoned their duty posts, a burden that has not been discharged. Fourthly, it is counsel’s submission that the 3rd defendant contention that the claimants relief sought are contradictory by asking the Court to declare their removal unconstitutional and on the other hand stating that they have not been removed from office. The reliefs sought by the claimants is that their de facto position in that they have physically been removed from office; is different from their de jure positions that the removal is/was not in accordance with the provisions of the law and, therefore, a nullity. It is for this reason that the claimants are praying the Court to nullify their removal, and the other reliefs sought in the statement of claim. In arguing issue two, counsel submitted that the 3rd defendant’s argument that no cause of action had been made out against them because they did not appoint the claimants neither did they pay any form of remuneration is misconceived. It is the membership of the 3rd defendant that is in issue in this case. It cannot rightly be submitted that the 3rd defendant ii not a necessary party. This is in addition to other facts which constitute the cause of action. Which include denying claimants access to their offices, issuing Exhibits CC6 – CC13 to the claimants, stoppage of payment of salaries and allowances. It is trite that a party is a person concerned or having or taking part in any affair, matter transaction, or proceeding . See Black’s Law Dictionary 6th Edition p. 11222. Also in Fawehinmi vs. NBA (No. 1) (2008) All FWLR (Pt. 447) 1, 59 A, Oputa, JSC, opined: Ballentine in his “Law Dictionary” 3rd edition at page 919 defined a party inter alia as “one of the opposing litigants in a judicial proceeding, a person seeking to establish a right or one upon whom it is sought to impose a corresponding duty or liability” It is the law that a necessary party is one whose participation and presence in the proceeding is necessary for the effective and complete determination of the claim before the court: P.W.T (Nig.) Ltd vs. J. B. O. Int’l (2011) All FWLR (Pt. 564) 21, 36 C – D.A party is also necessary to a proceeding where the reason for making a party to an action is that he should be bound by the result of the action. From the state of pleadings, the 3rd defendant was the tool used to ensure the wrongful and unlawful removal of the claimants. If the offices of the claimants were not made inaccessible by the 3rd defendant on the watchful eye of the DW2, the claimants would have still been in office till date. The intentions of the defendants became more pronounced by the letters (CC6 – CC13) written by 3rd defendant to the claimants. Furthermore, but for the effluxion of time, were reliefs 4 and 5 still subsisting, if granted by the Court, the reliefs would have imposed a corresponding duty or liability on the 3rd defendant. The Court, in view of the foregoing, was urged to hold that the claimants made out a case against the 3rd defendant making it a necessary party to the case of the claimants and give judgment to the claimants in terms of their reliefs (1), (2), (3) in paragraph 14 of their statement of claim. In addition, it should direct the immediate payment of their salaries and allowances. I have heard learned counsels to the parties in their final written addresses and I have also considered all the pleaded facts of the parties together with the evidence adduced by the witnesses called by the parties in this suit. To me, one issue arises for determination in this suit. The issue is whether the claimants are entitled to the reliefs they seek in this case? The facts of the claimants case is as pleaded in the process they titled “Statement of Claim”. I need to point out that the claimants appear to have wrongly titled the process. In the Rules of this Court 2007, particularly Order 3, Rule 4, thereof, the appropriate title of the process where the claimant pleads the facts of his case, in an action commenced by a Complaint, is the “Statement of Facts”. Be that as it may, the process is still competent notwithstanding the wrong title. It shall therefore be referred to in this judgment as titled by the claimants. In paragraphs 1, 6 and 7 of the statement of claim, the claimants averred that they were appointed as members of the 3rd defendant by the 1st defendant and they were sworn in on 24/2/2010 for a period of five years after their appointment was confirmed by the 4th defendant. CW 1 is the 1st claimant. He testified for the claimants. When testifying in line with pleaded facts, CW1 stated that the claimants were appointed by the 1st defendant as members of the 3rd defendant, that is, the Imo State Independent Electoral Commission, a body established by the constitution. Their appointments were confirmed by the 4th defendant on 4th February 2010 and they were sworn into office by the 1st defendant on 24th February 2010. The witness put their letters of appointment in evidence as exhibits CC1 to CC4. These exhibits were dated 24/2/2010 and signed by Chief Cosmas Iwu, the Secretary to the Government of Imo State. The first paragraphs of these exhibits read- “His Excellency, Chief (Dr.) Ikedi Godson Ohakim (KSC) the Governor of Imo State, has approved your appointment as Member, Imo State Independent Electoral Commission, Owerri.” CW1 testified further that their appointment was for 5 years beginning from February 2010 to February 2015. Upon their appointment, they resumed their duties at the 3rd defendant and they were being paid their salaries and allowances until May 2012. The witness testified that in late May 2012, he read a publication in the “Announcer Weekend” newspaper of 25-27 May 2012 that a new chairman and members have been sworn in to office in the 3rd defendant. The said publication was admitted in evidence as Exhibit CC5, although an objection to its admissibility was raised by the counsel to the 1st and 2nd defendants. By the directive of this court that the objection be taken at final address stage, the 1st and 2nd defendants counsel has argued his objection to the admissibility of Exhibit CC5 in his final address. I shall consider the objection later on in this judgment. CW1 testified further that following the publication in Exhibit CC5, the claimants, on 6/6/2012 received letters signed by the Director of Legal Services of the 3rd defendant, one O.C. Olumba, demanding the claimants to return the official vehicles attached to their former offices. The letters were admitted as Exhibits CC6 to CC9. CW1 continued that, besides the Exhibits CC6 to CC9 letters, they were not at any time officially informed that their appointments as members of the 3rd defendant had been terminated. Subsequently, the claimants could not get access into their offices and as a result, had to return their official vehicles as demanded of them in Exhibits CC6 to CC9. CW1 stated that it became very obvious that they had been removed from office as the 3rd defendant had not paid them their salaries and allowances for the months of June and July 2012 despite their repeated visits to the 3rd defendant’s office for payment. In the further evidence of CW1, which is principally evidence given in response to the facts of the 3rd defendant’s defence, CW1 stated that they are entitled to their salaries and it is the 3rd defendant that pays their salaries and allowances. The claimants denied abandoning their duties and further stated that abandonment of office is not a constitutional ground for their removal from office. To the witness, their unconstitutional removal from office is implied from the defendants’ acts of denying them access to their offices, the demand for return of their official vehicles, none payment of their salaries and the newspaper publication where it was reported that some persons had been appointed into their offices. In their defence, the 1st and 2nd defendants called one witness. The witness, as DW1, testified that the appointment of the claimants was contrary to the constitution and the Laws of Imo state. DW1 also contended that the claimants are not owed salaries and any salaries or allowances already received by them are recoverable from them because of the illegality of their appointments. To DW1, the defendants are not aware of the publication in Exhibit CC5 and the defendants are not aware of the removal or none removal of the claimants from office. DW1 stated also that the claimants abandoned their offices and ceased to function hence the request to them to return their official vehicles. The claimants were at no time prevented from carrying out their duties. DW1 testified also that the claimants are not entitled to any salaries for June and July 2012 as the salaries paid to the claimants was unconstitutional as it was fixed by the Secretary to the State Government, which is not the person authorized by law to fix or determine salaries of public office holders nor are the salaries claimed by the claimants fixed or approved by the 4th defendant nor determined by the Revenue Mobilization Allocation and Fiscal Commission. The 3rd defendant too called one witness, DW2, who testified that the claimants were appointed as members of the 3rd defendant but was not aware if the appointments were confirmed by the 4th defendant. DW2 stated also that the five-year tenure of the claimants is not sacrosanct as the claimants may be removed from office before their five-year tenure expired. The witness testified further that the 3rd defendant is not responsible for payment of salaries and allowances to the claimants and the 3rd defendant is not aware that the claimants’ salaries have been stopped. DW2 continued that the 3rd defendant did not place the publication in Exhibit CC5 and since the claimants were not appointed by a newspaper publication, they cannot rely on a newspaper publication to allege termination of their appointment. To DW2, none of the defendants terminated the appointment of the claimants as no formal communication was made to that effect to the claimants. That it was the claimants who abandoned their offices and absconded from work from 26/5/2012 by relying on the publication without investigating the authenticity of the publication or inquiring from any of the defendants. The claimants did not go to work between 26/5/2012 to 5/6/2012 which made the 3rd defendant to conclude that they had abandoned their offices, hence the request to them to return their official cars. The claimants returned the vehicles without any coercion which is evidence that they intended to stop work. Since the claimants did not work from June 2012, they are not entitled to salaries from that period The 4th defendant filed a statement of defence but did not call any evidence. While evaluating the facts and evidence of the parties, some facts pleaded by the 1st, 2nd and 3rd defendants caught my attention. These facts raise an important issue which should not be neglected. The 1st and 2nd defendants pleaded in paragraphs 4, 5 and 12 (d) of their statement of defence that the appointment of the claimants was inconsistent with and contrary to the constitution and the Laws of Imo state and therefore illegal. In paragraph 6 of the Evidence of DW1, the witness stated that the claimants are not owed salaries and any salaries or allowances already received by them is recoverable from them because of the illegality of their appointment. On its part, the 3rd defendant, in paragraph 3 of the Statement of Defence admitted that the claimants were appointed as members of the 3rd defendant but that it is not aware if the claimants’ appointment was confirmed by 4th defendant. These facts were also contained in the evidence of DW2. It will appear from the paragraphs of the pleadings of the 1st, 2nd and 3rd defendants set out here and the evidence of DW1 and DW2 that these defendants dispute the validity or legality of the appointments of the claimants. By these facts contended by the 1st, 2nd and 3rd defendants, the validity of the appointment of the claimants have been put in issue. Before the main issue in this judgment is considered, it is appropriate to resolve this contention of the defendants. The claimants have pleaded and given evidence to the fact that they were appointed by the 1st defendant as members of the 3rd defendant and their appointments were confirmed by resolution of the 4th defendant. The question may then be asked, what is the procedure for the appointment of members of the 3rd defendant? The 1st and 2nd defendants merely alleged that the appointments of the claimants was inconsistent with and contrary to the constitution but they did not give the particulars of none compliance with the constitution in the appointment of the claimants. This court takes judicial notice of the fact that the 3rd defendant is a creation of the constitution and the constitution also provided for the procedure for the appointment of members of the 3rd defendant and how they can be removed from office. As to the appointment of members of the 3rd defendant, Section 198 of the Constitution of the Federal Republic of Nigeria 1999 provides- “Except in the case of ex-officio members or where other provisions are made in this Constitution, the chairman and members of any of the bodies so established shall subject to the provisions of this Constitution, be appointed by the Governor of the State and the appointment shall be subject to confirmation by a resolution of the House of Assembly of the State”. From the above constitutional provision, two processes are involved in the appointment of members of the 3rd defendant. They are the appointment by the Governor and the confirmation by resolution of the House of Assembly of the State. The evidence of CW1 indicates that these processes were observed in the appointment of the claimants. Also, there are Exhibits CC1 to CC4 which show that the appointments of the claimants were made by the Governor. These exhibits were admitted in evidence without objection from the defendants. Also, I do not find any evidence from the 1st and 2nd defendants to suggest that the 1st defendant did not authorize Exhibits CC1 to CC4. In any case, the appointment of the claimants by the Governor has been admitted by the 3rd defendant. The 4th defendant’s statement of defence is before this court but no evidence was led on it. This court can, nonetheless, look at it in resolving some issues in this case. See NIGERGATE LIMITED vs. NIGER STATE GOVERNMENT (2008) All FWLR (Pt. 406) 1938 where it was held that, a court can rely on any document of fact already before it or forming part of its records in the determination of any issue before it. In paragraph 1 of the 4th defendant’s statement of defence, the 4th defendant admitted the facts averred in paragraph 6 of the claimants statement of claim. The said paragraph 6 of the claimants’ statement of claim is where the claimants pleaded that their appointment was confirmed by a resolution of the 4th defendant. All these facts put together, this court has no difficulty coming to find that the claimants’ appointment as members of the 3rd defendant was not contrary to the constitution and there is nothing irregular about their appointments. This is in addition to the fact that the 1st and 2nd defendants could not substantiate their allegation. In the result, I find that the claimants’ appointments were validly made. I now turn to the main issue in this judgment. The claimants have sought several reliefs in this suit. At the risk of repetition, the claims are as follows- 1. A declaration that the tenure of office of the claimants as members of the Imo State Independent Electoral Commission is subsisting, and shall expire in 2015. 2. A declaration that the claimants are entitled to their salaries, allowances and other entitlements as members of the Imo State Independent Electoral Commission from June, 2012 till the expiry of their tenure of office. 3. A declaration that the purported removal of the claimants from office as members of the Imo State Independent Electoral Commission is unconstitutional, null and void. 4. An order reinstating the claimants to their office as members of the Imo State Independent Electoral Commission. 5. An injunction restraining the defendants from preventing the claimants’ due exercise of their duties as members of the Imo State Independent Electoral Commission. 6. An injunction restraining the defendants from removing or purportedly removing the claimants from office as members of the Imo State Independent Electoral Commission, or, in any way, interfering with the duties of the claimants in the said office, except in strict compliance with the relevant provisions of the constitution of the Federal Republic of Nigeria, 1999, as amended. 7. An injunction restraining the defendants from appointing or confirming the appointment of any persons as members of the Imo State Independent Electoral Commission in the place of the claimants in the commission. Reliefs 1, 3 and 4 have the same effect. I shall consider them together. In relief 3, the claimants sought a declaration that their purported removal from office as members of the 3rd defendant is unconstitutional, null and void. The counsel to the 3rd defendant has argued in his final address that the claimants’ case is not that they have been unlawfully removed but that they have not been removed at all. Counsel referred to the evidence of CW1 under his cross examination where the witness said “we have not been removed from office in June and July and up till now”. Counsel submitted on this evidence, that this court takes the evidence to mean that the claimants have not been removed from the 3rd defendant up till now and thus their claim for a declaration that their removal was unconstitutional have no basis. It appears to me that the counsel to the 3rd defendant, by this line of argument, have misconceived the claimants’ case. Yes, CW1 gave that evidence in cross examination but that was not what the claimants pleaded nor was such fact contained in the evidence-in-chief of CW1. In paragraphs 10 and 11 of the Statement of Claim, the claimants pleaded that other than Exhibits CC6 to CC9, they did not receive any communication from the defendants officially removing them from office. And in paragraphs 12 and 13 of the Statement of Claim and Paragraph 2 of the claimants’ reply to the 3rd defendants’ Statement of Defence, the Claimants pleaded categorically that they had been illegally and unconstitutionally removed from office by the conduct of the defendants. The claimants’ case, as I see it from their pleadings, centers on their allegation that they have been removed from office. Therefore, there is no way I can subscribe to the submission of the counsel to the 3rd defendant that the claimants’ case is not that they have been removed from office. The actual cause of the claimants’ case having now been identified, it is good to now consider if they have proved their claim to the declaration that their alleged removal is unconstitutional, null and void. The law is that where a party alleges that he was wrongfully removed from office or his appointment was wrongly terminated, the party must plead and prove the following:- i. That he is an employee of the defendant, ii. Place before the court the terms of his employment and the terms and conditions of his employment, iii. Who can appoint and who can remove him, iv. In what circumstances his employment can be determined, and v. In what manner the said terms were breached by the defendant. See OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 42; AYORINDE vs. OYO STATE GOVERNMENT (2007) All FWLR (Pt. 356) 709 at 722; IGBINOVIA vs. UBTH (SUPRA) In this case, the claimants have pleaded and given evidence of the facts that they were appointed by the 1st defendant as members of the 3rd defendant and their appointments were confirmed by the 4th defendant. The claimants’ letters of appointments are Exhibits CC1 to CC4. I have found earlier in this judgment, upon these same facts, that the claimants were properly appointed into the 3rd defendant. Besides Exhibits CC1 to CC4 containing the salaries and allowances payable to the claimants and the fact that the appointment was for the duration of 5 years, the claimants did not place any other terms or conditions of the appointment before the court. The claimants, although said how they have been removed from office and also alleged that the manner they were so removed was unconstitutional and illegal, the claimants failed however to say anything about who can remove them nor the procedure by which they can be constitutionally removed from office. When the claimants alleged that they had been illegally and unconstitutionally removed from office, they were expected to plead and prove the mode they were supposed to be removed which procedure the defendants did not follow. By the want of proof of some of the requirements for a successful proof of an allegation of wrongful termination of appointment, the claimant can be said not to have proved their entitlement to the reliefs sought. However, in the circumstances of this case, I am unable to come to that conclusion. From the pleadings and evidence before this court, it is clear that constitutional provisions are involved in this case. The evidence of CW1 in Paragraphs 3, 4, 6, 7 and 8 of the statement on oath point to the fact that the claimants appointments were made pursuant to the constitution and in paragraph 7 and 8 of his further evidence, CW1 stated that the claimants’ removal from office was unconstitutional. From the pleadings and evidence of the 1st, 2nd and 3rd defendants also, the constitution was alluded to as regulating the appointments into the 3rd defendant. I have mentioned earlier in this judgment that appointments into the 3rd defendant and the removal of such persons from office are governed by the constitution. The 1999 constitution is the Grundnorm of this country and this court is obligated to take judicial notice of its provisions. The 1999 Constitution is the supreme law and binds all persons and authorities. Any person, body or organization named in the Constitution to perform a particular function or act in a particular way or spelt out how a particular thing is to be done, such function, act or thing cannot be done in any other way not borne out from the Constitution. See A.G. ABIA & ORS vs. A.G. FEDERATION & ORS. LER [2006] SC 99/2005. The claimants’ allegation in this case appears to be that the provisions of the constitution have not been complied with when they were removed. In such a situation, this court cannot close its eyes to an alleged breach of the constitution. If constitutional provisions have been breached, this court ought to inquire into it. In that case, the facts need to be settled whether the claimants have been removed from their office and if found that they have been removed, whether their removal was in accordance with the laid down procedure? In Paragraphs 9, 11, 12, 13 of the Statement of Claim; Paragraph 2 of the claimants’ reply to the 3rd defendant’s statement of defence and the evidence of CW1, the claimants contend that they were unconstitutional removed from office and their removal is implied from these acts of the defendants- i. The publication in Exhibit CC5 where it was reported that some persons had been appointed into the claimants’ offices, ii. Demand in Exhibits CC6 to CC9 for the return of the claimants official vehicles, iii. Denial of the claimants access to their offices, and iv. Non-payment of their salaries since June 2012. When cross examined by counsel to the 1st and 2nd defendants, CW1 stated that their reason for instituting this suit is because of what they read in Exhibit CC5 and the fact that they were denied access to their offices but when they saw the publication, they did not complain in writing to either the 1st or 2nd defendant. The witness maintained that they did not abscond from work and they did not receive any letter of removal but they were barred from entering the premises and not allowed to perform their duties. They also received Exhibits CC6 to CC9 from the 3rd defendant requesting them to return their vehicles. During questions put to him by the 3rd defendant’s counsel, CW1 stated that it was not the publication in Exhibit CC5 that dismissed them. After the publication on 25/5/2012, they continued to attend work until 6/6/2012 when they were given Exhibit CC6-CC9 to return their vehicles. Even then, they continued to go to work in June and July but all the while they were prevented from entering their offices. In their defence however, the defendants contend that the claimants were not removed from office but it was the claimants who abandoned their offices. DW1 said the defendants are not aware of the publication in Exhibit CC5 or that the claimants had been removed. To DW1, the claimants abandoned their duty post and not that they were prevented from carrying out their duties. It was because the claimants ceased to function that was why they were requested to return their official vehicles. In the evidence of DW2, she said none of the defendants terminated the appointment of the claimants as no formal communication was made to that effect to the claimants. The claimants abandoned their offices and absconded from work from 26/5/2012 by relying on the publication which was not placed by the 3rd defendant and without investigating the authenticity of the publication or inquiring from any of the defendants. The claimants did not go to work between 26/5/2012 to 5/6/2012 which made the 3rd defendants to conclude that they had abandoned their offices, hence the request to them to return their official cars. The first evidence presented by the claimant to show that they had been removed from office is Exhibit CC5. They tendered the exhibit to show that as at the date of the publication, being 25th May - 27th May 2012, when they were still in office, some other persons were sworn in by the 1st defendant to occupy their offices. Can this court consider or rely on the relevant portion of the said exhibit in the issue at hand in this judgment? This question will require that it should first be determined whether the exhibit is admissible in the first place. It is now time to come around to the objection by the 1st and 2nd defendants to the admissibility of Exhibit CC5. In his written address, the learned counsel to the 1st and 2nd defendants argued in the objection that the newspaper being a public document within the meaning of Section 102 and 104 of the Evidence Act, 2011, only certified true copy thereof is admissible and the failure to so certify the newspaper, the exhibit is inadmissible in evidence. Counsel cited in supported of his argument, the case of DAGACI OF DERE vs. DAGACI OF EBWA. Counsel submitted further that newspaper reports are not generally admissible as evidence of the fact recorded therein. He also cited the case of Agbai vs. INEC where the court relied on the cases of Oneh vs. Obi and Ngige vs. Obi on the principle. In responding to the objection, learned senior counsel for the claimants submitted, in his final written address, that since the newspaper did not come from official custody, it does not qualify as a public document which requires certification for it to be admissible in evidence. The learned SAN cited in support the reported case of Ho. vs. I & S International Ltd. Section 4 of National Library Act, LFN 2004 provides that the publisher of every book published in Nigeria shall, within one month after the publication, deliver to the National Library three copies of the book for permanent preservation. In such a situation, copies of newspapers kept in the National Library become public documents under Section 102 (d) of Evidence Act and will require certification under Section 104 of the Evidence Act to be admissible in evidence. But in this case, it has not been shown by the 1st and 2nd defendants that the newspaper came from official custody or that a copy thereof is in the custody of the National Library. Exhibit CC5 is the original publication; the primary evidence. In his evidence, CW1 said he read the news in the Announcer Weekend Newspaper of 25-27 May 2012 Edition that new members of the 3rd defendant had been sworn in and he brought the copy of the newspaper to show to this court. Exhibit CC5 was not produced from any official custody as it is. In the absence of evidence that the newspaper has become a public document, the newspaper remains a private document under Section 103. In Ho. vs. I & S International Ltd (supra), The Court of Appeal adequately settled this issue. It was held, per Alagoa, JCA (as he then was) at page 828 as follows- “... Mr. Achimugu referred to the Newspaper as a public document and as such should have been certified and being not certified, should be discountenanced. Public documents are dealt with under Section 109 of the Evidence Act, Laws of the Federation of Nigeria, 1990 as follows…. Exhibit 1 – THISDAY Newspaper of the 10th May, 2002 does not fall into the category of documents covered or referred to as public documents under Section 109 of the Evidence Act…. Newspapers and magazines in Nigeria and indeed the world over have come to command such aura of respectability and reliance among the reading public that surprisingly, even among learned gentlemen of the legal profession, the tag “public document” is better ascribed to them than “private document”. This is a wrong concept as far as the Nigeria Law of Evidence is concerned; they are not public documents but private documents.” It is my view that Exhibit CC5 is a not a public document requiring certification for its admissibility. It is a private document and it is the primary evidence of it that was tendered. It is admissible and has therefore been properly in evidence. The objection by 1st and 2nd defendants counsel is discountenanced. The claimants have inferred their removal on the basis of a news item at the last page of Exhibit CC5 published on Friday 25 May – 27 May 2012 where it was reported that a new chairman and members of the 3rd defendant were sworn in by the 1st defendant. As reported, those sworn are Barr. Teddy Akwari as the Chairman, Hon. Geoffrey Ihentuge, Dr. Anosike Uzoma, Dr. Godfrey Nwosu, Barr (Mrs.) Vero Ezike, Barr. Emma Owette. Under cross examination by the claimants counsel, DW2 stated that: “the present members of the 3rd defendant were appointed in September 2013. Before them, there was those appointed in June 2012. They were T.O Akwari as chairman, Hon Geoffrey Ihentuge, Dr.Kyrian Anosike, Dr. Godfrey Nwosu, Barr (Mrs.) Vero Ezike, Barr. Emma Owete and 1 other. They were in office from June 2012 to September 2013”. The evidence by DW2 corroborate the publication in Exhibit CC5 that the same persons named in Exhibit CC5 were sworn in as chairmen and members of the 3rd defendant at the time the claimants were still supposed to be in office. Evidence of DW2 therefore makes it probable that what was reported in Exhibit CC5 was correct. At that time of the appointment reported in Exhibit CC5, the claimants were still in office and they had not abandoned their office, as alleged by the defendants, at that time. Yet, other persons were appointed into their office. The claimants are entitled to infer from the act that their appointments had been terminated. Then there is Exhibits CC6 to CC9. These letters, written on 6th June 2012 by the Director of Legal Services of the 3rd defendant to the claimants, contain as follows in their first paragraphs- “I am directed to write to you requesting you to return all government properties including the official car attached to your former office.” I have observed that these letters were written to the claimants about 7 working days after Exhibit CC5 was published. The claimants’ offices were referred to in these letters as “former office”, a clear indication to the claimants that they were no longer considered the holders of those offices. The defendants attempted to find explanations for issuing Exhibits CC6-9 to the claimants. It is the defendants’ case that the claimants on their own abandoned their offices; that was why the letters were written to them to return their official cars. I do not believe this story of the defendants. If the claimants were away from their office at all, it was only for 7 working days before they received the letters on 6/6/2012. I do not think that is sufficient time to conclude that someone has abandoned his office. One would expect that the defendants, before concluding that the claimants have absconded from their office, ought to first give them a query for being absent from office for 7 days. All the defendants did was issue Exhibits CC6-CC9 to the claimants wherein the claimants were informed that their offices have become “former”. If the claimants had not been removed from office, the writer of the said exhibits would not have described their offices as former offices? The description “former office” is not suitable for a person who merely abandoned his office for 7 days. In any case, the claimants have shown that they were coming to the office even after they read Exhibit CC5 but were not allowed entry into their offices. The defendants have contended that the claimants have not been removed, as the claimants have not shown any official communication to them removing them from office. It must be said here that removal from office or termination of appointment can be made orally, in writing or by conduct. See the Supreme Court decision in IFETA vs. SHELL (2006) All FWLR (Pt. 314) 305 at 334. I find the contention of the defendants untenable. The claimants need not receive express communication of termination of their appointment before they can allege removal from office. Where all surrounding circumstances and the conduct of the defendants point to the fact that the defendants have eased the claimants out of office, termination of appointment is deemed proved. From all the facts before me, I find that the claimants have actually been removed from their office. Section 201 of the 1999 Constitution provides for the procedure to be followed in removing members of the 3rd defendant from office. It provides: “(1) Any person holding any of the offices to which this section applies, shall only be removed from that office by the Governor of that State acting on an address supported by two-thirds majority of the House of Assembly of the State praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct. (2) This section applies to the offices of the Chairmen and members of the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission.” The above was not the procedure adopted in the removal of the claimants in this case. The claimants were subtly eased out of office without any regard to the provisions of the constitution. The defendants alleged that the claimant were the ones who abandoned their offices till date. The act of abandoning their office will amount to a misconduct for which the claimants can be removed from office under Section 201 of the Constitution. If the defendants’ allegation is anything to consider, it will only amount to a ground to have initiated removal proceedings against the claimants. It is my view that before other persons could be appointed to fill their offices in the 3rd defendant, the defendants should have seen that the claimants are properly removed by following the procedure laid down in the constitution. Provisions of the Constitution stipulating how an act is to be done must be complied with and where that procedure is not followed, the act is unconstitutional, null and void. See GOVERNOR, KWARA STATE vs. OJIBARA (2007) All FWLR (Pt. 348) 864 at 878. In this case, I find that the claimants have been removed from office as members of the 3rd defendant, and their removal was not in accordance with the provisions of the constitution. The removal of the claimant from office is therefore unconstitutional, null and void. I so find and hold. The claimants’ relief 4 seeks an order of this court reinstating them to their offices as members of the 3rd defendant. It is settled principle of law that the consequence where a removal from office or appointment is found to be null and void is that the claimant is entitled to be reinstated to office. See GOVERNOR, KWARA STATE vs. OJIBARA (supra); EZE vs. GOVERNOR OF ABIA STATE (2014) 14 NWLR (Pt.1426) 192; ADEYEYE vs. GOVERNOR, EKITI STATE (2012) All FWLR (Pt. 652) 1744. The claimants are therefore entitled to be reinstated into their office. However, in the present state of affairs as has become obvious in this case, can the reinstatement of the claimants be ordered? CW1 testified that the tenure of the claimants was for 5 years and they were appointed vide Exhibit CC1 to CC4 on 24/2/2010 and they were sworn in on the same date. Constitutionally, appointment of the members of the 3rd defendant is for a period of 5 years from the date of the appointment. See Section 199 (1) (c) of the 1999 Constitution. Five years from the date of appointment of the claimants lapsed on 23/2/2015. The claimants’ removal from office as members of the 3rd defendant was effected between 25th May 2012 and 6th June 2012. From the date of their appointment, the claimants had spent only a period of 2 years, 3 months in office and had an unexpired period of 2 years and 9 months in their tenure. This suit was commenced on 16th August 2012 at the Imo State High Court before it was transferred to this court in October 2013. Since then, the matter did not get to be concluded until today being date of judgment. The claimants’ 5 years tenure got expired on 23/2/2015 while this case was pending. The counsel to the 1st and 2nd defendants took advantage of this situation to argue that that once the tenure of any statutory appointment/elected person elapsed due to effluxion of time any action for wrongful removal abates. He relied on the cases of BADEJO vs. FEDERAL MINISTRY OF EDUCATION and ADEPOJU vs. OYO STATE INDEPENDENT ELECTORAL COMMISSION. The learned counsel urged the court to strike out this suit as the live issue in it had ceased to exist. It needs to be said here that the claimants commenced their action timeously to challenge their removal from office and for no fault of theirs, their action lingered until the period of their tenure lapsed. The argument of the learned counsel for the 1st and 2nd defendants will not represent the law in this circumstance. Some of the reliefs sought by the claimants may have become unavailable, but since their removal has been found to be unlawful, they are entitled to some remedy. Once some remedy can be pronounced in their favour, it cannot be said that there is no live issue to be determined in this case. I will therefore avoid the urging of the 1st and 2nd defendants’ counsel to strike out this suit on the allegation it has become stale. The tenure of the claimants’ appointments has expired by operation of law. It is settled law that in such a situation, reinstatement is no longer the appropriate remedy. See EZE vs. GOVERNOR OF ABIA STATE (SUPRA). Granting reinstatement will be elongating the tenure of the claimants. The court of law cannot elongate the tenure of Public Officers who have been removed from office, notwithstanding that the removal was found to be unlawful. See LADOJA vs. INEC (SUPRA). There is no doubt that the claimants’ five-year tenure which began on 24/2/2010 expired on 23/2/2015. It is therefore impracticable for this court to make the order for their reinstatement to office. This also applies to relief 1 sought by the claimants where they seek a declaration that the tenure of their appointment as members of 3rd defendant is still subsisting and shall expire in February 2015. As at the date of this judgment, the claimants’ tenure of office has expired and is no longer subsisting. In the circumstance, a declaration that their appointments still subsist cannot be made. However, it has been held that where reinstatement is not possible due to effluxion of time, the claimants will be entitled to monetary compensation for the unexpired period of their truncated tenure. In EZE vs. GOVERNOR OF ABIA STATE (Supra) the Supreme Court held, at page 215 – 216 of the report, that where reinstatement is not possible due to effluxion of time, the court would be right to order payment of entitlements to the plaintiffs to cover what they would have earned up to the end of their tenure even where the relief was not expressly sought for. His Lordship, Rhodes-Vivour, JSC, held as follows: “If such a person is removed from office in a manner the court finds to be wrong, he shall be entitled to all his entitlement, to wit: salaries, allowances etc…Once the learned trial Judge was unable to order the reinstatement of the appellants because their tenure had lapsed, His Lordship was right to order that they be paid their entitlements in lieu of their reinstatement, since unpaid salaries are necessary and incidental to the relief seeking reinstatement.” Also, in ADEYEYE vs. GOVERNOR, EKITI STATE (supra), which was a case in the nature of this case where the Chairman and members of Ekiti State Independent Electoral Commission were unlawfully removed from office before the expiration of their 5-year tenure, the Court of Appeal, Per Tsammani, JCA, held at page 1781 thus: “In a situation such as this where the chairmen and members of a body or commission created by the constitution are removed in violation of the constitution or the statute creating same, the court will be quick to order for their reinstatement. However, in a situation where reinstatement is not appropriate or possible, the court may award damages in lieu of reinstatement” Relief 2 sought by the claimants in this suit is for a declaration that they are entitled to their salaries, allowances and other entitlements as members of the 3rd defendants from June, 2012 until the expiry of their tenure of office. CW1 testified that upon their appointment and swearing- in, each of them were paid their salaries and allowances from that time until, May 2012 when they were last paid by the Imo State Government. The claimants letters of appointment are Exhibits CC1 to CC4 disclosing the salaries and allowances and other entitlements of the claimants. The evidence from the defendants also supports the claimants’ case that the defendants did not pay any salaries to the claimants from June 2012 when they allegedly abandoned their offices. There is no dispute that the claimants have not received their salaries and allowances since June, 2012 when they were impliedly removed from office. The claimants were last paid in May 2012. On the basis of my findings in this judgment that the claimants’ removal from office was null and void and again, the impossibility of reinstating them to office, it is my view that they are entitled to be paid their salaries and allowances for the unutilized period of their appointment, being June 2012 to February 2015. But how much is the sum to be paid to the claimants? The relief 2 merely reads that the claimants are entitled to their salaries, allowances and other entitlements without stating the particular amount claimed neither did the claimants plead the specific amount outstanding to them. There is also no evidence of what the sum amounted to for these periods. The only evidence on record suggesting how much the claimants were to earn annually is Exhibits CC1 to CC4. Ordinarily, the law is that claim for salaries or allowances and other emoluments are special damages which must be specifically pleaded and proved. See UNIVERSITY OF JOS vs. DR M. C. IKEGWUOHA [2013] 9 NWLR (Pt. 1360) 478. If I rely on that authority, the claimant would not be entitled to the relief asking for payment of salaries and allowances. However, the Supreme Court in the more recent case of EZE vs. GOVERNOR OF ABIA STATE (Supra) has introduced a new angle to a situation of the nature of the claimants’ case. After observing that no evidence was led to establish the sums due to the appellants as salaries and allowances, the Supreme Court went ahead to hold that since all courts are Courts of Law and Equity, and since unpaid salaries are necessary and incidental to unlawful termination of tenure of office, it was appropriate to order that the appellants be paid their salaries and allowances for the period that they were out of office. The Supreme Court accordingly ordered that the appellants be paid immediately all their salaries and allowances for the 23 months remaining of their tenure before they were removed despite the fact that there was no evidence led as to the salaries and allowances of the appellants. I hold, on this authority, that the claimants are entitled to an order for the payment of their salary and allowances for the period of 1st June 2012 to 23rd February 2015. This order should be made in favour of the claimants even if they have not asked for it. The consequential remedy they are entitled to for the unlawful interference with their appointment is to be paid their salaries and allowances for the period remaining in their tenure since they can no longer be reinstated. The claimants in this case also sought some injunctive reliefs in their 5th, 6th and 7th claims seeking to restrain the defendants from unlawfully tampering with the claimants’ appointments. It appears the claimants sought these reliefs in anticipation of reinstatement to office. In view of my findings in this judgment that the tenure of the claimants’ appointments has expired and it is not possible to reinstate them to their offices, these reliefs cannot be granted. In conclusion, reliefs 1, 4, 5, 6, and 7 are hereby dismissed. Reliefs 2 and 3 are granted. The removal of the claimants from their appointments as members of the 3rd defendant in May 2012 is hereby declared unconstitutional, null and void. As a consequence, the defendants are ordered to calculate and pay to the claimants their salaries and allowances due to them for the months of June 2012 to February 2015. The sums due to the claimants must be paid to them within 1 month from the date of this judgment and if not paid within the period, the sums shall attract 10% interest per annum until paid. Cost of N200,000.00 is also awarded to the claimants against the defendants. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge