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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 02, 2015 SUIT NO. NICN/OW/20/2014 Between: 1. Mr. Robert O. Asuzu 2. Dr. Uche Donatus Edomobi 3. Mrs. Leticia Okere Claimants 4. Mr. Jude N. Nwosu And 1. Governor of Imo State 2. Attorney General of Imo State Defendants Representation: Dr. Livy Uzoukwu SAN; with him, C. K. Uba for the Claimants K. C. Nwokorie (Asst. Director, Imo State Ministry of Justice), for the Defendants JUDGMENT This action was first commenced at the High Court of Imo State on the 5th day of June 2012. By an order of the High Court of Imo State made on the 17th day of February 2014 per Hon. Justice P. O. Nnadi (now the Chief Judge of Imo State), this suit was subsequently transferred to this court. The case file was formally received in the registry of this court on the 28th day of February 2014. On the 9th day of May 2014, this court ordered parties to re-file their processes to bring them in compliance with the rules of this court. By a complaint filed on the 25th day November 2014, the claimants claimed against the defendants jointly and severally the following reliefs: 1. A declaration that under the terms of Section 199(1) (c) of the 1999 constitution (as amended) and the Claimants respective letters of appointment or conditions of service, the claimants are entitled to continue in office as chairman and members of the Imo State Civil Service Commission until 29th February, 2015. 2. A declaration that the purported removal of the claimants from office or the termination of their respective appointments as chairman and members of the Imo State Civil Service Commission is in breach of their conditions of service and is therefore illegal, unconstitutional, null, void and of no effect. 3. A declaration that the claimants under their conditions of appointment or contract of service are entitled to receive the salaries and allowances attached to their offices as Chairman and members of the Imo State Civil Service Commission until 29th February, 2015. 4. An Order setting aside the purported termination of the appointments of the claimants or their removal from office as Chairman and members of the Imo State Civil Service Commission. 5. An Order re-instating the claimants as Chairman and members of the Imo State Civil Service Commission and restoring to them all other rights, perquisites and entitlements of their offices. OR IN THE ALTERNATIVE:- (i) An Order for payment to the claimants, all remuneration due to them up to and including 29th February, 2015 consequent upon the premature termination of their appointment or service or removal from office as Chairman and members of the Imo State Civil Service Commission. (ii) An Order for the payment to the claimants their entitlements and remunerations which are as follows:- a) 1st Claimant (Mr. Robert O. Asuzu) N28,06l,955.00 b) 2nd Claimant (Dr. Uche Donatus Edomobi) N25,317,286.00 c) 3rd Claimant (Mrs. Leticia Okere) N25,317,286.00 d) 4th claimant (Mr. J.N. Nwosu) N25,317,286.00 The Complaint was accompanied by a Statement of Claim, Claimants’ written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The 1st and 2nd defendants filed their Statement of Defence on the 8th day of December, 2014 along with their witness’s written statement on oath and list of witnesses. Hearing commenced on the 9th day of December 2014. The 1st Claimant testified for the Claimants as CW1, while Mr. Kenneth Obioha, a Deputy Director (Administration and Finance) at the Imo State Civil Service Commission testified for the 1st and 2nd defendants as DW1. Hearing was concluded by the 19th day of February 2015, and the parties were ordered to file their final written addresses in accordance with the Rules of this Court. The case was then adjourned for adoption of final written addresses. The 1st and 2nd defendants filed their final written address on the 3rd day of March 2015. The Claimants’ Final Address was filed on the 26th day of March 2015. Thereafter, the defendants filed their Written Reply on points of Law on the 10th day of April 2015. Parties adopted their respective written addresses on the 23rd day of April 2015. In the defendants’ written address, counsel nominated the following four issues for determination: (a) Whether the claimants’ appointments or contracts of service enjoy a statutory flavour or tenured appointment. (b) Whether the claimants established and proved that their appointment or contract of service as Chairman and members of the Imo State Civil Service Commission was terminated by the defendants and/or in breach of Section 199(1)(c) of the 1999 Constitution (as amended). (c) Whether the claims or reliefs sought by the claimants are caught up by the Public Officers Protection (Act) Law of Imo State, and Nigeria; and (d) Whether the appointment or contracts of service of the claimants’ are valid in law and constitutional. In arguing the first issue as to whether the claimants’ appointment or contracts of service enjoy statutory flavour, Counsel submitted that the appointments of the claimants as Chairman and members of the Imo State Civil Service Commission enjoy a statutory flavour. Section 197(1) of the 1999 constitution (as amended) established for each state of the Federation the State Civil Service Commission, see also Third Schedule of the same constitution part II thereof. Furthermore Section 199(1) (c) of the constitution provided for the tenure of office of the claimants. Section 201(1) of the same constitution provided for the manner in which persons holding such offices as the claimants shall be removed. See also Section 201(2) of the constitution. In Derima vs. RSCSC (2005) All FWLR (Pt. 285). P. 451-452 paras. H-C the Supreme Court held that “the law of the master and servant employment falls into three categories viz:- (a) A pure master and servant relationship under common law; (b) Employment where office is held at pleasure (c) Employment protected by statute. In the instant case since the claimants’ appointment is governed by the Civil Service Rules, their employment comes under the 3rd category that is, the employment protected by statute or employment with statutory flavour. See the case of Shitta Bey vs. Federal Public Service Commissioner (1981) 1 SC 40”. The claimants in paragraphs 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 24 and Exhibits A, B, C and D respectively pleaded these facts in their statement of claim, the reliefs sought by them, and the deposition on Oath of CW1 i.e Chief Robert Asuzu. The defendants admitted paragraphs 1, 4, 5, 6, 7, 8 partly paragraph 9 and admitted paragraphs 11, 12 and 13 of the claim of the claimants. Apart from the above averments pleaded and admitted, the various sections of the 1999 constitution of the Federation of Nigeria (as amended) clearly situate the status of the claimants as statutory servants or tenured servant. In his argument of the second issue of whether the claimants established and proved that their appointment or contract of Service as Chairman and members of the Imo State Civil Service Commission was terminated by the defendants and/or in breach of constitution, Counsel submitted that the claimants had failed to prove and establish by credible evidence on record that their appointments or contract of services as Chairman and members of the Imo State Civil Service Commission was terminated by the defendants and/or in breach of the constitution. the pleadings of the claimants particularly, paragraphs 13, 14, 15, 17, 18, 19, 20, 21, 23 of the statement of claim, and the claimants’ evidence in paragraphs 15, 16, 17, 21, 22, 23 and 24 of the deposition of Chief Robert Asuzu (CW1) which were denied by the defendants in paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of their witness deposition i.e. DW1, Kenneth Obioha, and relied on Exhibits A-D in support. Having controverted the above material issues pleaded by the claimants and their evidence on record by the defendants, the onus is therefore on the claimants to prove the termination of their appointment or contract of service by the defendants. In Bamgboye vs. Unilorin (2001) FWLR (Pt. 32) p. 48 paras. A-B, the Supreme Court held “that the onus is on an employee to prove that the termination of his appointment was wrongful”. It is also the law that issues are joined on the pleadings and not in evidence. However evidence which is at variance with the pleadings go to no issue, and should be rejected and if admitted should be expunged see Bamgboye vs. Unilorin (supra) p. 48 paras. E – G. At this juncture, counsel posed the question: how would an employee prove wrongful termination of his employment? Counsel submitted that the case of Okeme vs. C.S.C. Edo (2001) FWLR (Pt. 36) p. 884 paras. C – D, where it was held per Akintan J.C.A. that, in the instant case, the appellant not only failed to plead and lead evidence in support of any details about his employment, he also failed to point at any statute, public service rules, or regulations breached as a result of the action taken against him. It is definitely not enough for learned counsel for the appellant to merely argue that the action taken by the respondents against the appellant was illegal null and void without pointing at the provisions of the very statute, rules, or regulations breached by the action of the respondent” is on all fours with the instant case in which the claimants have failed to plead and lead evidence in support of details about their employment. They have failed to cite any statute, public service rules or regulations breached by the defendants in their removal or termination. It is insufficient for the claimants to argue that they were illegally removed or terminated without specifying the provisions of the constitution, statute, rules or regulations they have relied on in making their claims. Looking at the memorandum to be subscribed on the writ, the claimants in paragraph (a) sought a declaration that under the terms of Section 199 (i) (c) of the 1999 constitution (as amended) and the claimants’ respective letters of appointments or condition of service, that the claimants are entitled to continue in office as Chairman and members of the Imo State Civil Service Commission until February, 2015. This pleading is not enough. A plaintiff seeking a declaration that the termination of his appointment is a nullity as being contrary to his contract of employment, must plead and prove the following material facts: i) That he is an employee of the defendant. ii) The terms and conditions of his appointment, and iii) The circumstances under which his appointment can be terminated or he can be retired. These are essential particulars of plaintiff’s pleadings and foundation of the action without which his claim cannot be sustained. See the case of Mobil Production Unlimited vs. Francis Johnson Asuah. (2005) 2 NLLR (Pt. 4) p. 66, paras. B – D. Reliefs (b) and (c) of the claim of the claimants apart from being declaratory were not stated, pleaded or proven in evidence. Also, the deposition on Oath by the 1st claimant for himself and those of the 2nd, 3rd and 4th claimants did not state or plead evidence to support the details about their employment and seriously failed to point at any provisions of the constitution, statute, public service rules, regulations breached by the defendants to support their reliefs claimed. See Okeme’s case (supra). Undoubtedly, the reliefs sought by the claimants are entirely declaratory what a plaintiff claims in a claim for a declaration that termination of employment is a nullity must plead and prove had been well settled in Igbinovia vs. UBTH (2001) FWLR (Pt. 50) p. 1761 paras. E – H, the Court of Appeal held that “where a party claims for a declaration that the termination of his employment is a nullity, he must plead and prove the following as material facts: 1. He is an employee of the defendant 2. How he was appointed and what are terms and conditions of his appointment. 3. Who can appoint him and who can remove? 4. What are the circumstances under which his appointment can be determined. See also ANTE vs. UNICAL (2001) FWLR (Pt. 41) pp. 1928 – 1929 paras. H-A where the court held also “that these factors are the foundation stone. Any action for wrongful termination or retirement that omits these essential particulars and thus leaves them to speculation by the defendants and the court is bound to fail”. It is counsel’s submission that the conditions stated above were not met by the claimants in their statement of claim and depositions on oath and evidence at the trial. Whereas paragraph 4 of the claim of the claimants partly stated that the 1st defendant appointed them to their respective positions as chairman and members of Imo State Civil Service Commission, their statement of claim and deposition on oath failed to state who can remove them from office and the circumstances under which their appointment or contract of service can be terminated. Thus, paragraphs 13, 14 and 15 of the statements of claim, and the claimants depositions on oath failed the test stipulated by the authorities on the issue. See ANTE vs. UNICAL (Supra); Igbinovia vs. UBTH (Supra). The circumstances under which the claimants may be removed is clearly provided for in section 201(1) and (2) of the 1999 constitution of the Federal Republic of Nigeria 1999 (as amended) which states thus: “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.” Subsection (2) of section 201 provides that “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”. Similarly, in law the Court does not make declaration of right either on admission or in default of defence. The Rules of Court and evidence relieve a party of the need to prove what is admitted but where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission in the pleadings of the defendants that he is entitled to the reliefs. The necessity for this arises from the fact that the court has discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye vs. Mbanefo Odu 2 WACA 336 @ 337. The claimants pleaded and relied on Exhibits A – D, so also the defendants. It is counsel’s submission that Exhibits A-D are not relevant and applicable to the issues for which purposes they were admitted see Okomu Oil Palm Co. Ltd vs. Iserhienrhien (2001) FWLR (Pt. 45) 648 para 6. The facts contained in these Exhibits are contrary and in conflict with the provisions of sections 124 (1), (2), (40 197 (1) (2) 201 (1) (2), 198, Third Schedule of the Constitution Part ii Section. 3. Again the writ of summons, statements of claim and deposition of witness of the claimants never pleaded that Exhibits A – D were sent to the House of Assembly. The persons that issued and signed Exhibits A-D and the 2nd March, 2010 letter was the Secretary to the State Government Chief Cosmos Iwu while the person that signed the remuneration package for the Claimants dated 23rd May, 2007 was Chief (Barr.) Chris Okewulonu. The same applied to Exhibit B, C and D for the 2nd to the 3rd claimants. The circular No. SGI/S.99/S.6/T.2/100 of 23rd May 2007 clearly stated that the Executive Governor of Imo State has approved a revised package remuneration for the claimants etc. This is outside the provisions of Section 124 1, 2, 3 and 4 of the constitution, thus making it illegal, null and void. It is the counsel’s contention that the claimant cannot benefit from an illegal agreement, or contract of service. They cannot on the ground of Public Policy and the principle of Ex-turpi causa non oritur actio i.e. No action can be founded on illegality. See the case of Alao vs. ACB (1998) 3 NWLR (Pt. 542) p. 339 of 355. Thus the conditions of service contained in circular No. SGI/S.99/S.6/T.2/100 of 23rd May 2007 attached to the letter of appointment of the claimant is illegal, null and void and when all the documents are taken tighter and read together as one document supporting the appointment of the claimants by the defendants as chairman and members of the Imo State Civil Service Commission cannot confer an enforceable contract in favour of the claimants. In the case of Barclays Bank DCO vs. B. Hassan (1961) All NLR 836, the court held that the unenforceability of documents must be pleaded and necessary facts which rendered the document unenforceable against the party pleaded. See also the case of Jebarra vs. Mercury Assurance Co. Ltd (1972) 2 UILR 498. See paragraphs 16, 17, 18 and 19 of the Statement of Defence, and the Written Deposition of DW1 paragraphs 5, 6, 7 and 11. Also, where a document forms part of a long drawn out transaction they should be read and interpreted together and not in isolation. See FGN vs. Zebra Energy Ltd. (2002) 3 NWLR (Pt. 754) 477 of 492 – 493. The law is that a document and its attachment have the same legal weight, In olly vs. Tunji (2013) the Court of Appeal held that where a document is validly admissible, its attachment goes with it and they have the same weight. Granted that Exhibits A – D are enforceable , the defendants in paragraphs 13 and 14 of their written deposition on oath unequivocally denied terminating the appointment of the claimant, and that the Civil Service Commission never did, as no termination letters were written to or given to the claimants. In Kaduna Textiles Ltd vs. Umar (1994) 14 NWLR (Pt. 732) page 1 of 10 paras. E-A per Achike JCA (as he then was) held that where there is need to plead and tender in evidence the letter of appointment, in a case of wrongful termination of appointment, the failure to tender the letter of termination in evidence is not necessarily fatal, if there is otherwise ample evidence to establish the terms of the contract of employment. The conditions set out in this case were not met by the claimants given the pleading, depositions on Oath and testimonies in court by CW1 and the pleadings and depositions on oath of the defendants coupled with evidence of DW1 before the court. The Court was urged by counsel to uphold this submission in favour of the defendants. On the third issue of whether the claims or reliefs sought by the claimants are caught up by the Public Officers Protection (Act) Law of Imo State and Nigeria? It is the contention of counsel that the claims or reliefs sought by the claimants are caught up by the Public Officers’ Protection Act Law of Imo State, and Nigeria. Section 2(a) of the Public Officers Protection Law of Imo State or Act Cap 379 Laws of the Federation of Nigeria.1990 (Cap P. 4 Laws of the Federation 2004) provides that an action or proceedings shall not lie or be instituted against such a person unless it is commenced within three months next after the act, neglect, or default complained of or in the case of a continuance of damage or injury, within three months next after the ceasing thereof. This provision has been held to cover natural persons sued in their personal names, public bodies, artificial persons, institutions and persons sued by their official names or titles. See the case of Ibrahim vs. JSC Kaduna (1998) 14 NWLR (Pt. 584) page 38 paras D – F, 44 paras. F-H, 45 paras. E-G. For the protection to be applicable however, the act done must be an act done in pursuance of or intended execution of any law or of any Public duty or authority see Ademola vs. Akinwale Thomas (1946) 12 WACA 81. In the extant case, the writ of summons in this matter was originally issued by the Registrar o the High Court of Imo State on the 5th day of June, 2012. The material paragraphs of the statement of claim of the claimants in computation of time when the cause of action accrued to the claimants are paragraphs 16, 19, 20, 22, 23 and 25. See also paragraphs 18, 22, 23, 25, 26, 28 and 29 of the depositions on oath of CW1 of the 2nd 3rd and 4th claimants. The defendants in paragraphs 18 and 19 of their defence joined issues with the claimants in respect of their claims being caught up by the Public Officers Protection Law (Act) of Imo State of Nigeria. The manner in which the claimants pleaded their claims of wrongful termination of their appointment by the defendants is speculative and contradictory. In paragraphs 16, 22 and 25 of their pleadings, they averred that their salaries and allowances were not paid at the end of February 2012, while in paragraphs 19, 22 and 23 of the said claim, they stated they were locked out of their offices on 7th March, 2012 and were also told that their appointments had been terminated orally by the Permanent Secretary, Civil Service Commission. It is counsel’s submission that whether the claimants’ appointments were terminated by the defendants at the end of February 2012 when their salaries and allowances were stopped or on 7th March 2012 when the Permanent Secretary Civil Service Commission informed them of the termination of their appointments and their lock out from their offices, the crux of their claim hinges on termination of their employment at the end of February, 2012. See the writ of summons vis-à-vis the reliefs sought;also the case of Nwogwugwu vs. The President of the Federal Republic of Nigeria (2007) All FWLR (Pt. 358) 1168. Having established that the cause of action accrued on February 2012, and that the writ of summons was signed and dated the 5th day of June, 2012 by the Registrar of the High Court of Imo State, therefore, the period of time when the suit was filed was over three months. Thus this suit is caught up by section 2(a) of the Public Officers Protection Law Act and therefore rendered the reliefs claimed unenforceable. There is therefore no cause of action in favour of the claimants against the defendants who are Public Officers. The Court was urged to sustain this submission on the principles enunciated in the following cases: 1. Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 47) 1 2. Ajayi vs. Military Administrator of Ondo State (1997) 5 NWLR (Pt. 504) 237; 3. Obi vs. Okoye (1961) 1 All NLR 357. Arguing the fourth issue of whether the appointment or contracts of service of the Claimants are valid in law and Constitutional? Counsel submitted that because the letters of appointment of the claimants also embodied their terms and conditions of service annexed as one single document, and given the facts that they were not pleaded to have been sent to the House of Assembly for confirmation and determination by the Revenue Mobilization Allocation and fiscal commission, the appointment of the claimants as Chairman and Members of the Imo State Civil Service Commission are invalid and unconstitutional. The documents in issue are Exhibits A, B, C and D which facts in support of them were pleaded by the claimants and issues joined on them by the defendants. See paragraphs 5, 6, 7, 8, 9 and 19 of the claimants’ pleadings, paragraphs 7, 8, 9, 10, 11, 12 of the depositions on oath of the claimants. See again paragraphs 4, 5, 10, 17, 18 and 20 of the pleadings of the defendants and paragraphs 5, 6, 7, 10 and 11 of the depositions on Oath by the defendants. It is the law that where more than a single document provided for the terms of the contract, such documents must be construed jointly. see the case of Ladipo vs. Chevron Nig. Ltd (2005) 1 NWLR (Pt. 907) page 277 @ page 289 paras F-H, p. 291 – 292 paras D –B. In paragraph II of the pleadings of the claimants the appointment of the claimants as Chairman and members of the Imo State Civil Service Commission was confirmed by the Imo State House of Assembly. This is all the claimants pleaded and gave evidence in support. The claimants never stated that Exhibit A, B, C and D and their attachments were sent to the Imo State House of Assembly and that they were approved by the Revenue Mobilization Allocation and Fiscal Commission. It is counsel’s submission with respect to the instant case that Sections 124 (1) (3) (4), 32 (d) of the Third Schedule Part 1 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) never provided for the delegation of the House Assembly’s functions to the Imo State Secretary to the Governor. It is in evidence that Exhibits A – D were issued, signed by the Secretary to the State Government in the persons of Chief Cosmas Iwu and Chief Barr. Chris Okewulonu who were not members of the Imo State House of Assembly and not officers of the Revenue Mobilization Allocation and Fiscal Commission. The letters of appointment of the claimants together with their terms of employment contained therein as single document are inconsistent with the above provision of the constitution of Nigeria 1999 (as amended). They are illegal, unconstitutional and not protected by the law. Therefore, no claims for payment of allowances, salaries and/or for re-instatement made by the claimant are sustainable. Thus, the reliefs or claims in paragraphs (a), (b), (c), (d) (e) and alterative reliefs (i) (ii) made by the claimants are illegal invalid, unconstitutional and not proved. Counsel urged the court to hold that the claimants are not entitled to any of such claims and their suit be dismissed accordingly. In the written address of the claimants’ counsel filed on 26th March 2015, two issues were formulated for determination, thus: (a) Whether the Claimants’ action is statute barred by virtue of the Public Officers Protection Law, Cap. 106, Laws of Eastern Nigeria, 1963. (b) Whether the removal of the claimants from their offices or the termination of their appointments as Chairman and members of the Imo State Civil Service Commission by the defendants was not in breach of section 201(1) of the 1999 Constitution (as amended)? Counsel’s argument on the first issue was premised on what he termed a misconception on the part of defendant’s counsel that the claimants’ reliefs are caught up by the Public Officers Protection Act Law of Imo State, and Nigeria, because the Public Officers Protection Law, Cap. 106, Laws of Eastern Nigeria 1963 ceased being applicable in Imo State on 30th December 1994. It is the contention of counsel that the Limitation Edit (Law) 1994 is the extant law on the issue of limitation of action in Imo State. Section 18 of the said law enacts as follows: No action founded on contract, tort or any other action not specifically provided for in parts II and III of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. In Section 2 thereof, “action” is defined thus; “includes any proceeding (other than criminal proceeding) in a court established by law” in the State. The limitation law 1994 introduced a radical change regarding limitation of action in respect of public officers and authorities by providing in Section 42 thus: Notwithstanding anything contained in any other enactment or rule of law to the contrary all actions to which this Edict applies howsoever arising against the State or against any State public authority, or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any neglect or default in the execution of any such act, duty or authority shall be commenced within the same period of time after the cause of action arose as if such action where brought by or against a private individual. Section 44 of the said law provides as follows:- Any enactments relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply. The above provision and Section 42 excluded the application hereof of the Public Officers Protection Law in Imo State. A community reading of sections 18 and 42 of the Limitation Law 1994, show the claimants are entitled to commence the action hereof against the defendants within a period of “five years from the date on which the cause of action accrued”. In the instant case, the action was brought before the expiration of 3 months when the cause of action accrued. Thus, even if the operation of the Public Officers Protection Law had not been abrogated or its provision had not ceased to apply in Imo State by virtue of the Limitation Law 1994, the action hereof would still not be held to be statute barred. The cause of action in the instant case arose on 7th March 2012 when the claimants were completely and effectively locked out of their offices and new persons who were appointed by the 1st defendant took over their offices. The action having been filed on 5th June, 2012 was filed within 3 months of the accrual of the cause of action. See paragraphs 16 – 23 of the Statement of Facts. In paragraph 16 of the Statement of Facts, it is clearly stated that the stoppage of the payment of salaries and allowances was not considered “unusual as sometimes, salaries and allowances in the State Civil Service or public service might be in arrears for two months or more”. The defendants in paragraph 10 of their Statement of Defence admitted that fact. From another perspective, the claimants’ injury is a continuous one starting from the non-payment of salaries at the end of February, 2013 which the defendants admitted is not an unusual practice with the State Government and continued until the termination of their appointments on 7th March, 2012. In Gwede vs. INEC (2014) 18 NWLR (Pt. 1348) 56 @ 116 – 119 paras. H-A, Galadima JSC said thus:- Where there is a continuing damage or injury, “cause of action will not ‘abate’ or become time barred until the injury which is of continuing nature completely stops or abates”. In Dangana vs. Gov, Kwara State (2011) All FWLR (Pt. 593) 1851 @ 10-2 paras. F-G, it was held as follows:- Up till the time the Appellant instituted his action, and even now, the act default or neglect has not cease or abated as it can be gleaned from the pleadings of Appellant that he is yet to come to terms with the fact that since the dissolution of the Commission on 10th June 2003, the State Government or the Respondents would not realize their mistake and settle his entitlement from 1st May 2003 to 17th October, 2005 when his tenure would have lapsed. In the circumstance, the last arm of subsection (a) of section 2 of the law which is that: “Or in case of a continuance of damage or injury, within three months next after the ceasing thereof” would apply to cushion the appellant from the effect of not commencing his suit on 10th June 2003, when he was served with the letter of termination of appointment or dissolution of his commission. Another ground which has rendered the provisions of Section 2(a) of the Public Officers Protection Law in applicable if its operation in Imo State had not been abrogated is the fact that the defendants in removing the claimants acted outside the colour of their offices. The defendants had contended that the appointments and status of the claimants are statutory in nature. They conceded that the appointment of each of them is for tenure of 5 years. Their removal before the end of their tenure was not done as stipulated in section 201(I) of the 1999 Constitution (as amended), hereafter referred to as “the Constitution”. In Ibrahim Judicial Service Committee Kaduna State (1997-1998) All NLR 318 -319 paras J-C also reported in (1998) 14 NWLR (Pt. 584) 1 it was held by Igu, JSC (as he then was) thus:- It can therefore be said that section 2(a) of the Public Officers Protection Law, 1963 gives full protection or cover to all public officers or persons engaged in execution of public duties who at all material times acted within the confines of their public duty. Once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of that law. In other words, a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of he was acting outside the colour of his office or outside his statutory or constitutional duty. In Ezeani vs. Nigerian Railway Corporation (2015) 3 NWLR (Pt. 1445) 139 @ 158-159 para F-A it was held as follows: Now, decidedly, abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers Protection Law of such protection. Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1194) 604 @ 622. By section 2(a) of the Public Officers protection Act, the law gives generous protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority, and are not acting outside their statutory or constitutional duty. Thus, a public officer can be sued outside the limitation period of three months if, at all times material to the commission of the act complained of, he was acting outside the colour or scope of this office or outside his statutory or constitutional duty. See also Yusufu vs. Egbe (11987) 2 NWLR (Pt. 56) 341 @ 361; Offoboche vs. Ogoja L.G.A (2001) 16 NWLR (Pt. 739) 459 and Nwankere vs. Adewunmi (1966) 1 All NLR 129 @ 134. Moreso is the averment in paragraph 18(a) and 19(v) of the Statement of Defence and the claim in paragraphs 10(d) and 15 of the deposition of the DW1 wherein it was respectively alleged that the suit is statute barred and premature, to which counsel argued that both claims are mutually exclusive. They cannot co-exist in one suit. The Court was urged by counsel to hold that the suit is not statute barred and resolve this issue in favour of the claimants and against the defendants. Counsel’s submission on the second issue flows from the legal imperative that facts must be pleaded, established or admitted before a court is invited to apply law to the proven facts. It must be clear to each party what case the other is making in its pleadings. In Kalu vs. Uzor (2006) 6 NWLR (Pt. 981) 66 @ 87 paras C-D, it was held thus: Without much ado, I must say that it is trite law that pleadings delimit and determined in scope and province of the legal ring for parties to prosecute and defend their respective case. It is the foundation of the success or failure of a case. It must be mentioned also that parties are bound by their pleadings and will not be allowed to set up in court a case which was at variance with the pleadings. Having regard to the state of pleadings of the parties in the extant case, particularly paragraphs 1 – 12, 16 and 17 of the Statement of Facts and paragraphs 2, 3, 4, 10, 11, 15 and 16 of the Statement of Defence, the parties are in agreement regarding the following material and crucial facts, namely: (a) the claimants are respectively the chairman and members of the Imo State Civil Service Commission who were appointed for a term of five years by the 1st defendant with effect from 2nd March, 2010. (b) The terms and conditions of the appointments of the claimants are respectively contained in Exhibits A, B, C and D. © That the appointments of the claimants were duly confirmed by the Imo State House of Assembly. (d) Thereafter, they assumed office and started discharging their statutory and constitutional duties. (e) At the end of February 2012, their salaries and allowances were not paid. However, in the State Civil or Public Service, it is not unusual for salaries to be in arrears for two months or more. The defendants’ reaction to the pleadings in paragraphs 13, 14 and 15 of the Statement of Facts is contained in paragraphs 7-9 of the Statement of Defence where they claimed that they “are not in a position to deny or affirm”. In Ogunola vs. Eiyekole (1990) 4 NWLR (Pt. 146) 632 @ 646 para G, the apex court held that an averment that one is not in a position “to admit or deny” paragraphs in a claim “is bad pleading and amounts to an admission”. The defendants’ aforesaid pleading fails to acknowledge that the pleadings in paragraphs 13, 14 and 15 of the Statement of Facts are matters that are easily within the knowledge of the defendants. It is incomprehensible that the defendants averred that they are not in a position to admit or deny the claim that the claimants have not been accused of any acts of misconduct by the defendants or any organ of government or that none of them had been called upon to explain any allegation against them. The implication for the defendants’ pleading in paragraphs 7-9 of the Defence is that paragraphs13, 14 and 15 of the Statement of facts are deemed admitted. The said paragraphs are rendered thus: 13. The 1st claimant is able and willing to continue to discharge his functions as the Chairman of the said Commission and does not suffer from any infirmity of body or mind that will render him incapable of performing the duties of his office as Chairman of the Commission. 14. Similarly, all the other claimants are capable and were actually performing the duties of their respective offices and do not suffer from any infirmity of body or mind which rendered any of them incapable of performing the duties of the respective offices as members of the commission. 15. None of the claimants has been accused of committing any acts of misconduct by the defendants or any organ or government. No organ of government has called them to explain any allegation of misconduct against them. The above paragraphs are crucial having regard to Section 201(1) of the 1999 Constitution (as amended). It follows that based on the admitted facts; the defendants could not have legally and constitutionally removed the claimants from their offices. Counsel contended the pleadings and the evidence of the CW1 and DW1 clearly show that the claimants established their claim and reliefs and same were supported by the defence. In paragraph 16 of his deposition, the DW1 stated that “The Claimants are not entitled to all or any of the reliefs they are seeking for in this suit”. It is instructive that before the DW1 ended his evidence in Chief, he stated “Some of the claims of the claimants are not in tandem. They are entitled to some of their claims. They are not entitled to some of their claims”. This situation is argued by counsel to be contradictory and in the case of Ayanwale vs. Atanda (1988) ANLR 24 @ 38, it was held that: No witness is entitled to the honour of “credibility” when he has two material inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful Similarly,in Ajide vs. Kelani (1985) 3 NWLR (Pt. 12) 248 @ 268 para C-D, the Supreme Court, per Oputa, JSC (as then was) held that: A party must be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn summersault during the trial. In paragraph 2.07 of their written address, the defendants conceded “the status of the claimants as statutory servants or tenured servant (sic)”. By Section 199(1) © of the Constitution, the claimants’ respective tenure of office is for a period of five years. The said tenure was pleaded by the claimants and admitted by the defendants. It is also stated respectively in Exhibits A, B, C and D that the five years tenure took effect from 2nd March, 2010. It is in the deposition of the PW1 and confirmed by the CW1 under cross examination. In consequence of the foregoing, counsel submitted that the claimants are entitled to their said reliefs. It is the duty of every government to comply with the provisions of the constitution and to preserve, protect and defend it. See the case of Igbe vs. Governor of Bendel state (1983) 2 SC 114 @ 147 paras. 10 – 15, per Obaseki, JSC (as he then was). Also, in the unreported case of Onuegbu vs. AG Imo State, Suit No. CA/OW/215/2011, delivered on 5th July 2012, it was held inter alia: “The Governor swore to preserve, protect and defend the Constitution and not to mutilate it”. Furthermore, the claimants’ pleadings regarding their removal from offices or the termination of their appointments are in paragraphs 16 – 23 of the Statement of Facts. Also see paragraphs 18 – 26 of the deposition of the CW1. The defendants’ reactions to these averments were part admission, casual and evasive pleadings. See Paragraphs 10 – 17 of the Statement of Defence. Under cross examination, CW1 stated thus: No letter of termination was given to any of us. It was unceremoniously communicated to us verbally by the Perm Secretary/Secretary of the Commission. This was communicated to us outside our office. We were not allowed to enter our offices. We had no alternative than to go. We made several efforts to see the SSG, but we were blocked and that is why we went to court. Citing the case of Amadi vs. Nwosu (1992) 5 NWLR (Pt. 241) 273 @ 284, Counsel urged the court to rely on the above piece of evidence which was not challenged under cross examination. DW1 under cross examination, stated inter alia thus: The Imo State Civil Service Commission as presently constituted is headed by Chief Fan Osuala with him are three members. The testimony of the DW1 was given on 19th February, 2015 within the unexpired period of the tenure of the claimants. Their respective tenure was to expire on 29th February, 2015. The implication of the above evidence is that after the claimants had been removed from their offices, the 1st defendant while purporting to exercise his powers under section 198(1) of the constitution appointed other persons to take over their offices as chairman and members of the Imo State Civil Service Commission. In Iheanacho vs. Chigere (2004) 17 NWLR (Pt. 901) 139 @ 147 para B – C, the Supreme Court per Onu, JSC (as he then was) held that: Evidence led by a party can be fully relied on by the other party either to establish his case or to damage or demolish the case of the person leading the evidence. Similarly, in Ikeni vs. Efano (1996) 5 NWLR (Pt. 446) 64 @ 82 paras D-E, it was held that where the evidence of a witness who is called by a party supports the case of his opponent, the evidence serves as a solemn admission in favor of the opponent. The evidence of the DW1 aforesaid has confirmed the evidence of the CW1 and the claimants’ pleadings that on 7th March 2012, they were completely and effectively locked out of their offices and the purported new Chairman and members of the Civil Service Commission took over their offices. Counsel urged the Court to hold that the Civil Service Commission as presently constituted assumed office on 7th March, 2012 and not “March 2011” as averred by the defendants. It is counsel’s submission that the claimants can only be legally, lawfully and constitutionally removed from their offices if there was due compliance with the provisions of Section 201 of the 1999 Constitution which provides thus: 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 function of the office (whether arising from infirmity of mined 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 tenure and removal of members (including Chairman) of the State Independent Electoral Commission, a constitutional creature like the Civil Service Commission came under consideration in the case of Governor of Kwara State vs. Ojibara (2006) 18 NWLR (Pt. 1012) 654 @ 659 – 661 paras. F-D where Oguntade, JSC (as he then was) inter alia held: 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 both the Governor and the State Legislature. This is done with a view to create continuity and stability to the State Civil Service and the State Judiciary 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. This explains why Section 202 of the Constitution provides stringent conditions for qualification for appointment as members of the three commissions mentioned. In particular, I bear in mind section 202 of the constitution which provides. ‘202 In exercising its power to make appointments or to exercise disciplinary control over persons, the State Civil Service Commission, the State Independent Electoral Commission and the State Judiciary Service Commission shall not be subject to the direction and control of any other authority or person’. The result is that the members of these commissions are expected to be independent and unbiased in their day to day judgment of affairs and events. I have said this much in the hope that all players in the field of politics will imbibe the culture of paying due reverence and regard to the provisions of the Constitution. This has become necessary because in these times, there is an unrestrained inclination to disregard the constitution and treat its terms with irreverence and disrespect. The constitution is the very foundation and structure upon which the exercise of all organs of governance is hinged. It must be held inviolable. In the instant case, the court below found that the respondents were removed from office in flagrant attempt to override the clear provisions of the constitution. The court below pronounced the removal from office of the plaintiff null and void. The consequence of that pronouncement is that in the eyes of the law, the respondents had not been removed from the office. In his consideration of section 201 of the Constitution, Tabai, JSC (as he then was) said supra at page 664 paras C-D thus:- There are two conditions under which members of the aforesaid bodies can be removed. The first is that the Chairman and members would be removed for inability to discharge the official functions arising from infirmity of body or mind. The other is for misconduct. The conditions outlined in the above cited case do not exist in this instant case. The defendants’ argument that the claimants did not plead or “point at any statute, public service rules or regulations breached by the defendants in their removal or termination is needless because what is required to be pleaded are facts not statute or law. There is a distinction between pleading law, which is not permitted, and raising a point of law in a pleading law, which is permitted. Pleading law obscures or conceals the facts of the case; raising a point of law defines or isolates an issue or question of law on the facts as pleaded. In this regard, the practice of the court is to consider and deal with the legal result of pleaded facts, although the particular result alleged is not stated in the pleadings. See the case of Mohamed vs. Military Administrator, Plateau State (2001) 16 NWLR (Pt. 740) 524 @ 551-552 paras G-E. In the instant case, the claimants have copiously pleaded and stated that their removal from their offices was unconstitutional, illegal, null and void. The defendants even rightly understood it to mean that they can only be removed from office as provided in section 201(1) (2) of the Constitution. See paragraph 4.00 of their address. The defendants contended that “no termination letters were written to or given to the claimants” and consequently, said that the claimants cannot “justify (sic) their termination without tendering” same in court. See paragraph 4.06 of their address. Counsel argued that the obligation to justify the termination is on the defendants and not the claimants and the defendants have through their action and conduct clearly shown that the claimants have been removed from their offices or their appointments terminated. The most potent of which was the appointment of new people to take over the claimants’ offices when their tenure had not expired. In Ifeta vs. SPDC (Nig.) Ltd (2008) 8 NWLR Pt. 983) 585 @ 621 paras G-H Onnoghen, JSC said:- To me it does not matter whether appellant was given notice in writing or oral (notice is notice) what is important is whether the respondent had demonstrated clearly by action that the services of the appellant are no longer required by the respondent. This fact is very clear from the evidence in that respondent retrieved the identity card of the appellant without which appellant can neither enter the premises of the respondent nor work for it; his salaries and other entitlements were stopped after being told that his appointment had been terminated. At page 632 paragraph B, supra he stated thus:- Further still, I hold the view that notice is notice whether in writing or oral provided both parties are not mislead as to what is going on. In the instant case, appellant knew and in fact accepted the fact that his appointment with the respondent was terminated on 17th May, 1991 whether orally or in writing. It has also been canvassed on behalf of the defendants that the appointments of the claimants are invalid in law and unconstitutional. The defendants unequivocally admitted the claimants pleadings that they were appointed Chairman and members respectively of the Civil Service Commission by the 1st Defendant and “duly confirmed” by the Imo House of Assembly. There is due compliance with the provisions of Section 198 of the Constitution. In Ngige vs. Obi (2006) 14 NWLR (Pt. 999) 1 @ 160 paras B-C, the court adopted the definition of duly as meaning “in a proper manner; in accordance with legal requirements”. It is counsel’s submission that confirmation by the House puts a final legal and constitutional seal on the appointments of the claimants. Their having been “duly confirmed” by the House means that they were done in a proper manner and/or in accordance with legal requirements. In the light of the foregoing the defendants cannot state that the appointments of the claimants are illegal and unconstitutional. An appointment with statutory flavor can only be determined as provided in the statute under which the appointment was made. See the case of Governor Ekiti State vs. Ojo (2006) 17 NWLR (Pt. 1007) 95 at 120 paras A-B and 121 paras A-H. Thus at the instance, the Court holds that the removal of the claimants from their respective office is unconstitutional, null and void, “the consequence is that in the eyes of the law, the respondents had not been removed from office”. See Governor Kwara State vs. Ojibara supra at 661 paras. B-C. As per the claimants relief (e) that they are entitled to an Order re-instating the claimants as Chairman and Members of the Imo State Civil Service Commission and restoring to them all other rights, perquisites and entitlements of their offices. It is counsel’s submission that this action was instituted on 5th June 2012, that is, some 2 years 10 months ago and it is neither the fault of the Court nor the parties that the matter was not determined before the expiration of the tenure of the claimants on 29th February, 2015. The claimants anticipated that the scenario they are now faced with could happen; hence they claimed alternative reliefs (i) and (ii). Relief (e) is no more grantable, the alternative reliefs appear to be apt in the circumstances of the instant case.In the case of Igbe vs. governor of Bendel State supra at 139 paras 30-35, it was held thus:- Since the post held by him has been filled, the only remedy open to him, as has been rightly found by the trial judge, is in the award of damages for the breach of his contract of service as a member of the commission. At page 154 paras 5 – 10, it was also held that: In the result, the appellant, having succeeded in his appeal, is entitled to be paid the total sum of N57,228.00 as basic salary, housing subsidy and telephone subside for the unexpired term of four years and nine months as set out in the lead judgment. Similarly,in Eze vs. Governor, Abia State (2014) 14 NWLR (Pt. 1426) 192 @ 215-216 paras H-B, Rhodes – Vivour, JSC held thus: All courts in the land are courts of law and equity. Elected persons for a fixed term of years can only be removed from office if found to be in breach of the rules governing the office or infamous conduct. 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. A court of equity will not allow the executive to get away with wrongful acts rather it would call the executive to order and ensure that justice is not only done but seen to be done. Judges are expected at all times to decide according to the justice of the case and what is right, and always lean towards equity instead of strict law. Once the learned trial judge was unable to order the re-instatement of the appellants because their tenure had elapsed, His Lordship was right to order that they be paid salaries are necessary and incidental to the relief seeking re-instatement. The said alternative reliefs prayed for in the instant case are as follows: (i) An Order for payment to the claimants, all remunerations due to them up to and including 29th February, 2015 consequent upon the premature termination of their appointment or service or removal from office as Chairman and Members of the Imo State Civil Service Commission. (ii) An Order for the payment to the claimants their entitlements and remunerations which are as follows: (a) 1st claimant (Mr. Robert Asuzu) = N28,016,955.00 (b) 2nd claimant (Dr. Uche Donatus Edomobi) N25,317,286.00 (c) 3rd claimant (Mrs. Leticia Okere) N25,317,286.00 (d) 4th claimant (Mr. J.N. Nwosu) N25,317,286.00 In paragraphs 25.1-27 of their Statement of Facts, the claimants graphically and copiously pleaded the particulars of salaries and allowances they are praying the Honourable Court to grant them. In paragraph 18 of the Statement of Defence, “the defendants deny paragraphs 24 & 25 of the Statement of Claim (sic)” in paragraphs 29-31 of the CW1’s deposition, the claimants gave a clear breakdown of the salaries and allowances they were entitled to for the unexpired period of their tenure based on Exhibits A, B, C and D. The defendants did not challenge any of the details as given by the claimants but stated that the salaries and allowances claimed by the claimants are illegal and unconstitutional. The defendants gave notice in their list of documents, that they “shall equally use” the documents tendered by the claimants as Exhibits A-D. The DW1 in his evidence in Chief, after referring to Exhibits A-D, said: “I rely on the documents”. In paragraph 3.00 of their written address, it was conceded thus:” The defendants in their defence relied on Exhibits A-D in support”. The implication is that both parties are relying on Exhibits A-D in support of their respective case and are bound by them. The defendants who asserted that the said documentary exhibits (w they issued to the claimants are “illegal” and “unconstitutional” must establish first that they can lawfully impugn their own documents and secondly prove that the documents are illegal and unconstitutional. In so far as the documents were tendered without objection and the defendants expressly placed reliance on them, the documents are not within the class of documents that are in any event inadmissible (like uncertified public documents) and the defendants are the makers of the documents, it is not only morally despicable but unjustifiable under the law for them to lampoon and castigate Exhibits A-D. Indeed, the documents for all purposes were admitted by consent. “A document tendered by consent and admitted ought to be given full legal effect”. See the case of Longe vs. F.B.N. Plc (2006) 3 NWLR (Pt. 22) @ 281 para D. the defendants’ contention that “the claimants never pleaded that Exhibits A-D were sent to the House of Assembly” derails the course of justice because Exhibits A-D, were issued on the authority of the 1st defendant and there is no denial that is not the case. Counsel submitted that the appointments of the claimants as admitted by the defendants were “duly confirmed” by the House of Assembly. From 2nd March, 2010 – 7th March 2012, and for a period of two years, the defendants enjoyed the service of the claimants and later terminated same. It will therefore be unlawful for the defendants to escape their liability under contract with the claimants. In the case of Adedeji vs. NBN Ltd (1989) 212 @ 226-227 paras G-A it was held as follows:- Apart from the principle of law involved in this case, it is morally despicable for a person who has benefited from an agreement to turn round and say that the agreement is null and void.In pursuance of the principle that law should serve public interest, the courts have evolved the technique of construction in bonam partem. One of the principle evolved from such construction in the interpretation of statutes is that no one should be allowed to benefit from his own wrong.(Nollus commodum capere posttest de juria sua propria). As Widgery :J said in Buswell vs. Goodwin (1971) 1 All ER 418 at page 421. “the proposition that a man will not be allowed to take advantage of his own wrong is no doubt a very salutary one and one which the court would wish to endorse”. The effect is usually that the literal meaning of the enactment is departed from where it would result in wrongful self-benefit. There is also the well-known principle of the law of evidence that everything is presumed right until the contrary is proved. In effect, there is the presumption of regularity. Also in Kano Texile Printers Plc vs. Gloede & Hoff Nigeria Ltd. (2002) 1 NWLR (Pt. 751) 420 @ 448 paras B-D, it was held: In any case, the responsibility for seeking local approval and obtaining foreign exchange is on the Appellant. The appellant by his own contract created a duty which he is bound to fulfill: Nicholas vs. Marsland 2 EXD 1 @ p. 4 per Mellish L,J which was followed by Guddard L.J in Makin Ltd. vs. East London Norht Eastern Railway Co. (Pt. 1941)1 KB 467. The appellant is not entitled to turn its own failure to make good its words a sword. There is not relief for breaker of contract: Adekoya vs. Span Electric Ltd. (1974) U.I.L.R 56, 81. It is encapsulated in the Latin maxim. Nollus commodum capere posttest de juria sua propria: First Bank Nigeria Plc vs. May Medical Clinic (1996) 9 NWLR (Pt. 471) 195, 204; Adedeji vs. National Bank of Nigeria Ltd. (1989) 1NWLR (Pt. 96) 212.226-227. Counsel submitted that the defendants who claimed a defect in the claimant’s appointment cannot benefit from their own wrongdoing. The defendants relied on the said Exhibits to pay the claimants their salaries and allowances. The contents thereat represent declarations from the defendants. They are in law estopped from denying those declarations. Section 169 of the Evidence Act 2011 provides as following: When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing. In the case of A.G Nasarawa State vs. A.G. Plateau State (2010) 10 NWLR (Pt. 1309) 419 Fabiyi JSC stated as follows: I need to further remind the defendant that section 151 of the Evidence Act clearly incorporated the doctrine of equitable estoppels, in Ude vs. Nwara & Anor.(1993) 2 NWLR (Pt. 278), this court pronounced that by operation of the rule of estoppel, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it said to approbate and reprobate. See also the case of Ondo State University vs. Folayan (1994) 7 NWLR (Pt. 354) 1 @ 25 paras C-E ; Governor Ekiti state vs. Oho (2006) 17 NWLR (Pt. 1007) 95 @ 119 para. C-D. It is the law that he who asserts must prove. See section 131 of the Evidence Act, 2011 See section 133 of the Evidence Act 2011.The defendants contended in their address that the Circular No. GI/S.99/S/T.2/100 of 23rd May, 2007 attached to each of Exhibits A-D and issued under the authority of the 1st defendant which contained revised package remuneration for political, public and judicial office holders in Imo State breached the provisions of section 124(1) (2) (3) and (4) of the Constitution. The evidence of the DW1 who under cross examination testified thus: It is the responsibility of the State House of Assembly of articulate the conditions of service of members of commission. This is provided in the Constitution. It is not for from section 124(1). Salaries and allowances are not the same thing. Salaries and remuneration are the same thing… I depose to the fact that the claimants’ salaries were not prescribed by the appropriate authority. The appropriate quarter is the State House of Assembly. The state House of Assembly issues as a benchmark that determines the salaries to be paid to Chairman and Members of Commission... I do not know when the House of Assembly last issued such a benchmark. The relevant provisions of Section 124 of the Constitution, namely section 124(1) – (3) enacts thus:- 124.(1) There shall be paid to the holders of the offices mentioned in this section such remuneration and salaries as may be prescribed by a House of Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilization Allocation and Fiscal Commission. (2) The remuneration, salaries and allowances payable to the holders of the offices so mentioned shall be charged upon the Consolidated Revenue Fund of the State. (3) The remuneration and salaries payable to the holders of the said offices and their conditions of service, other than allowances, shall not be altered to their disadvantage after the appointment. The chairman and members of the Civil Service Commission, among others, fall within the provisions of the aforesaid section 124 of the Constitution. The provision clearly did not treat allowances to mean the same thing as remuneration and salaries. Under Section 123(3), allowances payable to the Chairman and members of the Commission “shall not be altered to their disadvantage after the appointment”. Under Section 124(1), whatever remuneration and salaries that a House of Assembly prescribes, shall not exceed the amount determined by the Revenue Mobilization Allocation and Fiscal Commission (RMFC). Counsel contended that the following questions are relevant, namely: (a) For the Commissions in Imo State, what is the amount prescribed as remuneration and salaries by the House of Assembly? (b) What amount did RMFC determine? (c) Did the amount prescribed by the House of Assembly exceed that determined by the RMFC? (d) If it exceeds, by what amount? The defendants led no evidence from were answers to the above questions could be found. DW1 said the House of Assembly prescribes a benchmark that determines the salaries payable to the Chairman and members of the Commission and that he “did not know when the House of Assembly last issued such a benchmark”. This means that he did not know the amount that represents such a benchmark and no evidence of it was given. In the light of the foregoing, counsel argued that it will amount to speculation to determine that the salaries payable to the claimants exceeded the undisclosed benchmark or the unknown amount prescribed by the House of Assembly or the unstated amount determined by the RMFC. It is trite law that speculation is not part of the business of a court. In Ivienagbor vs. Bazuaye (1999) 9 NWLR (Pt. 620) 552 @ 561 paras E-F, per Uwaifo, JSC (as he then was), it was held thus: A court cannot decide issue on speculation no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it. See Overseaa Construction Co. Ltd vs. Creek Enterprises Ltd. (1985) 16 NSCC (Pt. 2) 137 @ 1375; (1985) 3 NWLR (Pt. 113) 409. Also, the defendants cannot introduce oral evidence to vary Exhibits A – D unless for example , they prove fraud or illegality which has not been done in the instant case. See section 128(1), Evidence Act 2011. the only thing on record is a mere claim made by the DW1 that the said documents are illegal and unconstitutional. That claim has not been proved at all. The law is that a document speaks for itself. Oral testimony is inadmissible to vary, add or take away from the content of document. See N.I.D.B vs. Olalomi Industries (2002) 5 NWLR (Pt. 761) 532. In respect of the foregoing, counsel urged the court to resolve the issues raised in favour of the claimant, discountenance the contentions of the defendants and hold as follows: (a) That the action is not statute barred. (b) That the claimants are entitled to 5 years tenure with effect from 2nd March 2010.. (c) That their removal from their offices is in breach of section 201(1) of the 1999 Constitution. (d) That the claimants are entitled to their salaries and remunerations for the unexpired part of their tenure. And grant all the claimants’ reliefs except relief (e). In the defendants’ written reply address filed on 10th April 2015, Counsel submitted that the Public Officers Protection Law Cap. 106, Laws of Eastern Nigeria 1963 as applicable to Imo State had not been abrogated or its provisions had not ceased to apply in Imo State. The defendants relied on and pleaded the Public Officers Protection Law (or Act) of Imo State. Whereas the Public Officers Protection Law Cap. 106, Laws of Eastern Nigeria 1963 as applicable to Imo State is as State or Regional law, the public officers protection Act Cap, 379 Laws of the Federation of Nigeria 1990 or Cap P. 4 Laws of the Federation of Nigeria 2004 are Federal Laws. The provisions of the three enactments referred above especially Section 2(a) are in Pari Materia. They deal with the same issue of protection of public officers vis-à-vis Commencement of suits against Public Officers or Institutions within three months from time of accrual of cause of action. Counsel contended that if the Limitation Law 1994 of Imo State has extinguished the application of the Public Officers Protection Law Cap. 106 Laws of Eastern Nigeria applicable to Imo State since 1994, the provisions of the Public Officers Protection Act. Cap. P. 4 L.F.N 2004 are still applicable to extinguish the instant suit being laws made by the National Assembly on the same subject. See Sections 18 of the Interpretation Act, Section 318 of the 1999 constitution, (as amended), and the unreported judgment of this court in suit No. NICN/OW/06/2014, dated February 10th 2015 delivered by His Lordship Hon. Justice O.Y. Anuwe in Dr. Ethelbert Anyanwu and Governor of Imo State & 4 ors. The claimants submitted that their injury is a continuous one starting from the non-payment of salaries at the end of February, 2013. The defendants submitted that it is not true and correct as the cause of action accrued at the end of February 2012 when the claimants’ salaries and allowances were stopped. See the judgment of the court in suit No. NICN/OW/06/2014 (Supra). Also the Claimants’ claim that Section 2(a) of the Public Officers Protection Law is inapplicable in that the defendants acted outside the colour of their offices is not correct in law. It is counsel’s submission that if the claimants are aggrieved by the way and manner they were removed from their appointments by the defendants, they must seek redress in the court of law within three months as stipulated by the Act or Law. See the case of Nigeria Ports Authority vs. Generatifs (1974) 12 S.C.P. 18. Again, the issue of abuse of office, lack of authority, acting without legal justification, bad faith, are not issues to be considered at the state when the matter was filed outside the limitation period. In Kasandubu vs. Ultimate Petroleum Ltd. (2008) All FWLR (Pt. 417) 155 of 182, it was held that a public officer, who in the course of performance of public duty, does so maliciously or for private spite, has no protection under Section 2 of POPA if the action is filed against him within 3 months .see also Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 @ 596-597 where it was held as follows: “Where the action was instituted within the period of 3 months prescribed, there is a cause of action and the legality vel none of the action complained of can be in issue. It is in such a situation that at the trial, evidence can be led to determine whether the protection under the Public Officers Protection Act has been vitiated by malice improper motive, bad faith or deliberate exercise of power without lawful authority”. Counsel submitted that the claimants never pleaded, gave evidence on oath of the above exceptions to the application of POPA, and also Section 201(1) (2) of the constitution. The cases of Yusufu vs. Egbe; Offoboche vs. Ogoja LGA, Nwankwere vs. Adewunmi (Supra) cited by the claimants are inapplicable to the case here. In arguing the second issue, the claimants argued that paragraphs 13, 14 and 15 of their claim were admitted by the defendants who stated that “they are not in a position to deny or admit” paragraphs 13, 14 and 15 of the statement of facts. That the pleadings of the defendants amounted to an admission. Counsel submitted this position is incorrect in law. The statement of defence of the defendants contained a general traverse at the opening paragraph. The effect of this general traverse is to put the claimants to the strict proof of the facts alleged in the statement of claim. See the case of Jimona Ltd. vs. Nigerian Electrical Constrcting Co. Ltd (1976) 1 All NLR 122. Atta vs. NNacho (1965) NMLR 28. In Ugochukwu vs. Cooperative & Commerce Bank (Nig.) Ltd. (1996) 6 NWLR (Pt. 456) @ P. 524, the Supreme Court held that when there is a general denial followed by an averment that the defendant is not in a position to “admit or deny” an averment in the statement of claim stated that it cannot amount to an admission but a clear denial” Counsel submitted that the claimants cannot smuggle in the provisions of section 201 (1) and (2) of the 1999 Constitution (as amended) in their address which they did not give evidence on in court by CW1 to anchor their case as they have done in paragraphs 4.34 – 4.35 of their written address. The case of Governor Kwara State vs. Ojibara (Supra) cited by the claimants is inapplicable to the matter in that the claimants in that case pleaded the relevant sections of the constitution section 201 (1) and (2) or facts in support of their claim and gave evidence in support. The suit in that case was fought on originating summons, and not on writ of summons. The facts in Ojibara’s case are radically different from this one and clearly distinguishable. Counsel urged the court to discountenance the authorities cited by the claimants in this matter for being completely irrelevant to the issues, pleadings and evidence led before the court. The suit as presently prosecuted by the claimants is unmeritorious and should be dismissed. Counsel urged that Judgment be given in favour of the defendants in this matter, in addition to the award of substantial cost given to the defendants. 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. In my view, two issues are to be determined in this suit. The issues are- 1. Whether the claimants’ suit is statute barred. 2. Whether the claimants are entitled to the reliefs they seek in this suit. ISSUE 1:- In their statement of defence, the defendants pleaded that the claimants’ suit is statute barred. DW1 also alleged in his evidence that this suit is statute barred by effect of the Public Officers’ Protection Act. It is proper at this point to consider the objection to the competence of the claims of the claimants raised by the defendants. The issue of statute bar raised by the defendants fundamentally affects the jurisdiction of this court to determine the claims in this suit. It has been settled in judicial pronouncements that such an issue of jurisdiction can be raised at any stage of a proceeding. Jurisdiction is a threshold issue in the adjudicatory process and a court must have jurisdiction before it can hear a matter or make any binding decision in it. It does not matter at what stage of the proceeding it was raised. Also, the method by which it is raised is irrelevant. Once the issue of jurisdiction is raised, it must be decided before the court can proceed any further in the matter. See MUSA vs. MADWETTE (2008) All FWLR (Pt. 421) 937 at 947; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR Pt. 447 141 at 177. It therefore becomes necessary that the issue of statutory limitation be taken first and determined before I can delve into the main case, if eventually, I find it necessary to do so. In paragraphs 18 (a) and (b), 19 (i) and 20 of the Statement of Defence, the defendants contended that this suit is statute barred by virtue of the Public Officers’ Protection Act and this court has no jurisdiction to entertain it. In his evidence, DW1 stated that this suit was filed outside 3 months from the accrual of the cause of action and the suit is therefore caught up with the Public Officers’ Protection Act. When arguing issue 3 formulated in his written address, the defendants counsel, K.C. Nwokorie Esq., submitted that the writ of summons in this matter was issued by the Registrar of the High Court of Imo State on the 5th day of June, 2012 while in the pleadings of the claimants, their cause of action arose at the end of February 2012 when their salaries and allowances were stopped. Counsel submitted that a calculation of these periods show that the suit was not filed within three months. Therefore, Section 2 (a) of the Public Officers Protection Law Act applies to bar the claimants’ suit against the defendants who are public officers. The learned senior counsel for the claimants, Dr. Livy Uzuokwu, S.A.N has extensively responded to this point of objection by the defendants in issue 1 of his written address. His submissions have been reproduced earlier in this judgment when summarizing the submission of the counsels to the parties in their written addresses. To the learned senior counsel, the claimants’ suit is not statute barred by reason of the several points canvassed by the learned SAN. Section 2(a) of the Public Officers’ Protection Act, relied on by the defendants to contend that the claimants’ suit is statute barred, is to the effect that actions against public officers must be commenced within 3 months of the accrual of the cause of action. If not so commenced, the action is barred and the court will no longer have jurisdiction to entertain the action. See IBRAHIM vs. J.S.C KADUNA STATE (1998) 14 NWLR (Pt. 584) 1; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182. The defendants’ contention on this point is that the claimants’ suit was not filed within 3 months from the time their cause of action arose. I shall therefore limit discussion on this issue to period of limitation. In determining the 3 months period under Section 2 (a) of the Public Officers’ Protection Act, the actual date in which the cause of action arose and the date the suit was filed are very germane. It is after a proper calculation between these periods has been done that the question whether the suit was filed outside 3 months and thus statute barred can be resolved. There appears to be no issue about the date of filing of the suit. It is clearly shown on the originating process that it was filed on 5/6/2012 before the Imo State High Court. The point on which I disagree with the defendants counsel is the date the cause of action arose. The defendants counsel, in his own view, the claimants’ cause of action should be taken from the “end of February 2012.” This view will not be correct when the facts of the claimants case as pleaded in paragraphs 19, 20 and 23 is considered. The statement by the claimants in paragraph 16 of the statement of facts that “at the end of February 2012, their salaries and allowances were not paid” cannot be taken to mean that that was the time their cause of action arose. In fact, a proper reading of that paragraph will show that they did not consider none payment of this salary at end of February 2012 to give them any cause of action. That is why they further pleaded in the same paragraph that “they did not consider it unusual as sometimes salaries and allowances in the state civil or public service might be in arrears for two months.” The fact that the claimants cause of action did not arise at the end of February 2012 is also shown in paragraph 23 when they pleaded that none payment of their salaries did not prevent them from discharging their duties. The date the claimants’ cause of action accrued is as pleaded in paragraphs 19, 20 and 23. In these paragraphs, it is the claimants’ case that they were informed of the termination of their appointment on 7th March 2012 being the same date they were completely locked out of their offices and new members of the Commission took over their offices. From these pleaded facts, it is clear to me that the claimant’s cause of action accrued on 7th March 2012. This is because cause of action arises at the date or time when a breach or any act that will warrant the person who is adversely affected by the act to take action in court. See BANK OF THE NORTH vs. GANA (2006) All FWLR (Pt. 296) 862 at 881. From the 7th March 2012 to 5th June 2012 when this suit was filed was a period less than 3 months by 2 days. This suit was filed within 3 months of the accrual of the claimants’ cause of action. Therefore, claimant’s suit is not statute barred as contended by the defendants. ISSUE 2:- I now turn to consider the claims sought by the claimants in this suit. The claimants have sought several reliefs in this suit. At the risk of repetition but for effect, the claims are as follows: (a) Declaration that under the terms of section 199(1) (c) of the 1999 constitution (as amended) and claimants respective letters of appointment or conditions of service, the claimants are entitled to continue in office as chairman and members of the Imo State Civil Service Commission until 29th February, 2015. (b) Declaration that the purported removal of the claimants from office or the termination of their respective appointments as chairman and members of the Imo State Civil Service Commission is in breach of their conditions of service and is therefore illegal, unconstitutional, null, void and of no effect. (c) Declaration that the claimants under their conditions of appointment or contract of service are entitled to receive the salaries and allowances attached to their offices as Chairman and members of the Imo State Civil Service Commission until 29th February, 2015. (d) An Order setting aside the purported termination of the appointments of the claimants or their removal from office as Chairman and members of the Imo State Civil Service Commission. (e) An Order re-instating the claimants as Chairman and members of the Imo State Civil Service Commission and restoring to them all other rights, perquisites and entitlements of their offices. OR IN THE ALTERNATIVE:- (i) An Order for payment to the claimants, all remuneration due to them up to and including 29th February, 2015 consequent upon the premature termination of their appointment or service or removal from office as Chairman and members of the Imo State Civil Service Commission. (ii) An Order for the payment to the claimants their entitlements and remunerations which are as follows:- 1st claimant (Mr. Robert O. Asuzu) N28,016,955.00 2nd claimants (Dr. Uche Donatus Edomobi) N28,317,286.00 3rd claimant (Mrs. Leticia Okere) N25,317,286.00 4th claimant (Mr. J.N. Nwosu) N25,317,286.00 In proof of their case, the claimants called the 1st claimant as their witness. He testified as CW1. When testifying in line with pleaded facts, CW1 stated that he was appointed as chairman of the Imo State Civil Service Commission while the 2nd to 4th claimants were appointed members of the same Commission by the 1st defendant on 2nd March 2010 for a term of five years. The respective appointment letters of the claimants were admitted in evidence without objection as Exhibits A, B, C and D. CW1 continued that the appointment letters also contained that the condition of service of the claimants’ appointment is also subject to the conditions of service contained in Circular No. SGI/S.99/S.6/T.2/100 attached to their letters of appointment. These two documents contain the condition of service regulating their appointment. CW1 testified further that their appointment was confirmed by the Imo State House of Assembly after which they assumed office and were duly discharging their functions. There seems to be no dispute about the appointment of the claimants as chairman and members of Imo State Civil Service Commission. By the facts pleaded in paragraphs 2, 3 and 6 of the defendants statement of defence, the defendants admitted that the claimants were appointed by the Governor of Imo as chairman and members of Imo State Civil Service Commission for a term of 5 years from 2nd March 2010 and their appointment was confirmed by the Imo State House of Assembly. The defendants have, in the said paragraphs, also admitted that the claimants were issued Exhibits A to D with the attached circulars. It is trite that facts admitted need no further proof. Therefore, the fact is settled in this case that the claimants were duly appointed as members of the Imo State Civil Service Commission on 2nd March 2010 for a term of 5 years. However, in issue 4 of the defendants counsel’s written address, he submitted that since the claimants appointment letter have not been shown to have been sent to the House of Assembly for confirmation and determination by the Revenue Mobilization Allocation and fiscal commission, the appointment of the claimants as Chairman and Members of the Imo State Civil Service Commission is not valid in law and is unconstitutional. This argument by counsel has never been the case of the defendants. As I have found above in this judgment, the defendants clearly admitted facts pleaded in paragraphs 4 to 8, 11 and 12 of the claimants’ statement of claim. These admitted facts are facts establishing the claimants due appointment as chairman and members of Imo State Civil Service Commission and confirmation of the appointment by Imo State House of Assembly. From the defendants pleading and evidence, the only issue they appear to dispute is the salaries and allowances sought by the claimants in this matter and not the appointment of the claimants. The defendants have alleged that the salaries and allowances earned by the claimants were unconstitutional because they were not prescribed and approved by the appropriate authorities. I shall come to this issue latter in this judgment but I must make the point here that the defendants counsel cannot by his address change facts clearly pleaded or admitted by the defendants. My finding here that the claimants due appointment as chairman and members of the Imo State Civil Service Commission have been established, leads me to consider relief (a) sought by the claimant. It reads— “DECLARATION that under the terms of Section 199(1)(c) of the 1999 Constitution (as amended) and the claimants’ respective letters of appointment or conditions of service, the claimant are entitled to continue in office as Chairman and Members of the Imo State Civil Commission until 29th February, 2015.” The said Section 199 (1) (c) of the Constitution cited in the relief provides that a person appointed as member of State Civil Service Commission shall hold office for a period of five years from the date of his appointment. The claimants have pleaded that the tenure of their appointment was five years. This fact was admitted by the defendants. There are also Exhibits A, B, C and D showing that the claimants were appointed for a term of five years with effect from 2nd March, 2010. Therefore, by the provision of the said Section 199 (1) of the Constitution and Exhibits A-D, the claimants’ respective tenure of office is for a period of five years from 2nd March 2010 and to lapse on 29th February 2015. It however appears to me that what the claimants actually sought in relief (a) is a declaration that they are to remain in office until the last day of their tenure. This is similar to relief (e). It is more appropriate I leave the issue whether the claimants are to remain in office till expiration of their tenure to the stage when relief (e) will be considered. But I must state here that the provision of Section 199 (1) (c) is not sacrosanct. It did not say that the claimants cannot be removed from office until their five years tenure elapsed. It merely prescribed the tenure of office for the members of the bodies to which the section applies. Further down in Section 201 of the Constitution, the manner and on what grounds members of the bodies can be removed from office before the expiration of their tenure is set out. The gist of the claimants’ case in this suit is their allegation that their appointments were terminated midway by the defendants and that the termination of their appointment was not constitutional. The claimants also made a case about their salaries and allowances. In the evidence of CW1, he testified that about the end of February 2012, the claimants discovered that their salaries and allowances were not being paid which non-payment they did not consider unusual as they sometimes do not get paid on time. Later on, they began to notice efforts to deny them access to their offices. This latter action made them try to find out from the office of the Secretary to the Imo State Government about the development but they got no reply. Then on 7/3/2012, they were completely locked out of their offices and a new chairman and members of the Civil Service Commission took over their offices on the authority of the 1st defendant. On that very day, the Permanent Secretary, Civil Service Commission, one Austin Otuokere Esq., informed them that their appointments had been terminated by the 1st defendant. CW1 also stated that the claimants were willing to continue to discharge the functions of their appointments and they did not suffer any infirmity of body or mind that would have prevented them from performing the duties of their offices. His evidence also mentioned that none of the claimants had been accused of committing any act of misconduct by the defendants, and no organ of the government had called them to explain any allegation of misconduct against them. The claimants had not been paid salaries and allowances they were entitled to under their appointment since February 2012. The non-payment of their salaries did not prevent them from discharging their duties until 7/3/2012 when they were informed that their appointments had been terminated. They are entitled to complete their tenure of five years or be paid their outstanding salaries and allowances due to them for the remainder of their tenure. In paragraphs 29 and 30 of his evidence, CW1 computed the amount each of them is to earn between March 2012 and February 2015. DW1 who testified for the defendants gave evidence that neither the defendants nor the Civil Service Commission gave any termination letters to the claimants and the claimants did not at any time report any wrong done to them by staff of the Commission or the defendants to any authority. DW1 also stated that the defendant nor any other officer did not deny the claimants access into their offices but that it was the claimants who refused to carry out their duties after their salaries were stopped. To DW1, the circulars attached to the claimants’ letters of appointment are illegal, null and void and that the conditions of service in the appointment letters are illegal and unconstitutional. DW1 further testified that the claimants were not paid their salaries because it was discovered by the defendants and the Civil Service Commission that the claimants were not entitled to the salaries and allowances being paid to them as the salaries and allowances were unconstitutional, contrary to law and not prescribed by the Imo State House of Assembly and determined by the Revenue Mobilization Allocation and Fiscal Commission. Therefore, the claims for outstanding salaries and allowances for their unexpired tenure cannot be entertained by this court. The first point to be resolved from the foregoing evidence of the parties is whether the claimants have been removed from office. In their pleading and evidence, the claimants were able to show that the defendants first stopped payment of their salaries and allowances. This was followed by the denial of the claimants’ access into their offices and finally on 7th March 2012, other persons were sworn into to occupy the claimants’ offices and the claimants were informed by one Austin Otuokere Esq. the Permanent Secretary in the Imo State Civil Service Commission, that their appointments had been terminated. But according to the defendants, neither the defendants nor any of their officers denied the claimants access into their offices but that it was the claimants who refused to carry out their duties after their salaries were stopped. In effect, the defendant is saying they did not remove the claimants from office and did challenge the claimants to show any written communication of their removal. The defendants have admitted that they actually stopped the salaries and allowances of the claimants. Although the defendants alleged that what was being paid to the claimants as salaries and allowances were illegal and unconstitutional that was why it was stopped, they however failed to show that after the illegality was discovered, the proper step was taken on the salaries and allowances of the claimants as to see that the claimants continued to earn salaries for their offices. The defendants completely stopped payment of salaries to the claimants without any plan or effort to right the salary issue. It is clear from the conduct of the defendants that the claimants were no longer wanted in their offices. The claimants have also shown that while their tenure was still running, the 1st defendant appointed other persons into their offices. Under cross examination, DW1 stated that the Imo State Civil Service Commission as presently constituted is headed by Chief F.A.N Osuala with him are 3 members and they assumed office in March 2011. This evidence supports the claimants’ allegation. Notwithstanding the difference in dates of the new appointments, it is clear that the persons were appointed when the claimants’ tenure had not elapsed and it has not been shown by the defendants that at the time of the appointment of the new members, the claimants’ appointment had been properly terminated. At that time of the new appointments, the claimants were still in office and they had not refused to carry out their duties, as alleged by the defendants. This I find in paragraph 26 of the evidence of CW1 when he told this court that notwithstanding the none payment of their salaries, the claimants continued to work until 7th March 2012 when they were informed that that their appointments had been terminated. When new appointments were made into the same office occupied by the claimants, in addition to the stoppage of their salaries, the claimants did not even need an Austin Otuokere to inform them that their appointments had been terminated. The defendants’ conducts had made that fact very clear. 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. In IFETA vs. SPDC (NIG.) LTD (2008) 8 NWLR Pt. 983) 585 at 621 the Supreme Court, per Onnoghen, JSC held:- “To me it does not matter whether appellant was given notice in writing or oral (notice is notice) what is important is whether the respondent had demonstrated clearly by action that the services of the appellant are no longer required by the respondent. This fact is very clear from the evidence in that respondent retrieved the identity card of the appellant without which appellant can neither enter the premises of the respondent nor work for it; his salaries and other entitlements were stopped after being told that his appointment had been terminated. 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. The claimants have sought a declaration that their removal from office is unconstitutional, null and void. Where a claimant alleges that the termination of his employment is unconstitutional or null and void, it indicates that the mode of the termination of the employment is constitutionally or statutorily prescribed but which procedure was flouted. Now, was the removal of the claimants from office unconstitutional? The defendants counsel has argued that the claimants did not prove the requirement for wrongful removal because they failed to specify the provisions of the constitution, statute, rules or regulations breached by the defendants in their removal or termination. It is settled law that what is required to be pleaded are facts not evidence, statute or law. It is from those pleaded facts that applicable laws are applied. In this case, the claimants’ pleadings in paragraph 4, 12, and reliefs (a) and (b) of the statement of facts show that their appointment have constitutional backing. In paragraph 13 to 15 also, the claimants pleaded thus- 13. The 1st claimant is able and willing to continue to discharge his functions as the Chairman of the said Commission and does not suffer from any infirmity of body or mind that will render him incapable of performing the duties of his office as Chairman of the Commission. 14. Similarly, all the other claimants are capable and were actually performing the duties of their respective offices and do not suffer from any infirmity of body or mind which rendered any of them incapable of performing the duties of the respective offices as members of the commission. 15. None of the claimants has been accused of committing any acts of misconduct by the defendants or any organ or government. No organ of government has called them to explain any allegation of misconduct against them. In traversing the above paragraphs of the statement of facts, the defendants pleaded in paragraph 7, 8 and 9 of the statement of defence that they are not in a position to admit or deny the facts in the claimants said paragraphs. The implication of the defendants’ pleading in paragraphs 7-9 of the Defence is that paragraphs 13, 14 and 15 of the Statement of facts are deemed admitted. See OGUNOLA vs. EIYEKOLE (1990) 4 NWLR (Pt. 146) 632. The claimants, by the facts pleaded in paragraphs 13 to 15 of statement of facts, are in essence saying they can only be removed on those grounds. I do not think they must plead the sections of the constitution or statute under which they rely in those pleadings. It is sufficient if the facts as pleaded have foundation in constitutional or statutory provisions. It will appear that the claimants found their case on Section 201 (1) of the Constitution. More still, this court has a duty to take judicial notice of the provisions of the Constitution. I know that the appointment or contract of service of the Chairman and members of the State Civil Service Commission is governed by the Constitution. Section 197(1) of the Constitution established for each state of the Federation the State Civil Service Commission and Section 199(1) C) of the constitution provided for the tenure of office of members of the State Civil Service Commission. Section 201 of the same constitution provided for the manner in which persons holding such offices shall be removed. The Constitution is the supreme law and binds all persons and authorities in this country. 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 were not complied with when they were removed. See relief (b). 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. Section 201 of the 1999 Constitution provides for the procedure to be followed in removing members of State Civil Service Commission 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 impliedly admitted the procedure was not followed when they contended in this suit that the claimants were not given termination letters. They are indirectly saying that the claimants have not been removed from office. But since it has become clear in this judgment that the defendants have actually terminated the claimants appointments, the defendants can be said to have admitted that they did not follow the constitutional process for the claimants’ removal. Constitutional provisions 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 Imo State Civil Service Commission, 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 (e) seeks an order of this court reinstating them to their offices as members of the 3rd defendant. It is a 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 appointment of the claimants was for a term of 5 years with effect from 2nd March 2010. Constitutionally, appointment of the members of State Civil Service Commission 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 1/3/2015. The termination of the claimants’ appointment as members of the Imo State Civil Service Commission was communicated to them on 7th March 2012. From the date of their appointment, the claimants had spent only a period of two years in office at the time of termination of their appointment and they still have an unexpired period of three years in their tenure. This suit was commenced on 5th June 2012 at the Imo State High Court before it was transferred to this court in February 2014. Since then, the matter did not get to be concluded until today being the date of judgment. Along the way, while this matter was still pending, the claimants’ 5 years tenure expired on 1/3/2015. The tenure of the claimants’ appointments has therefore 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 tenure of Public Officers who have been removed from office, notwithstanding that the removal was found to be unlawful. See LADOJA vs. INEC (2007) 40 WRN 1. There is no doubt that the claimants’ five years tenure which began on 2/3/2010 expired on 1/3/2015. It is therefore impracticable for this court to make the order for their reinstatement to office. Relief (e) sought by the claimants therefore fails. In the alternative to reinstatement, the claimant sought for the following orders in reliefs E (i) and (ii)- “(i) An Order for payment to the claimants, all remuneration due to them up to and including 29th February, 2015 consequent upon the premature termination of their appointment or service or removal from office as Chairman and members of the Imo State Civil Service Commission. (ii) An Order for the payment to the claimants their entitlements and remunerations which are as follows:- 1st claimant (Mr. Robert O. Asuzu) N28,016,955.00 2nd claimants (Dr. Uche Donatus Edomobi) N28,317,286.00 3rd claimant (Mrs. Leticia Okere) N25,317,286.00 4th claimant (Mr. J.N. Nwosu) N25,317,286.00.” In paragraphs 25, 25.1 to 25.20 and 26, the claimants pleaded and particularized the salaries and allowances each of them is to earn from February 2012 when they were last paid to February 2015 when their tenure was supposed to lawfully end. From the calculations, each of the claimants is entitled to the sums stated against their names in relief e (ii). CW1 explained in his evidence, CW1 that their salaries and allowances were not paid from the end of February 2012 till they were informed of the termination of their appointment on 7/3/2012. It is on this basis the claimants seek payment of their salaries and allowances from February 2012 to February 2015. The defendants did not dispute the amount the claimants are seeking but their case, however, is that the claimants were not entitled to the salaries and allowances being paid to them as the salaries and allowances were unconstitutional, contrary to law and not prescribed by the Imo State House of Assembly and determined by the Revenue Mobilization Allocation and Fiscal Commission. In his written address, the defendants counsel submitted that the claimants did not show that Exhibits A, B, C and D and their attachments were sent to the Imo State House of Assembly and that they were approved by the Revenue Mobilization Allocation and Fiscal Commission. Counsel cited sections 124 (1) (3) (4), 32 (d) of the third schedule part 1 of the 1999 constitution of the Federal Republic of Nigeria (as amended) and submitted that the claimants did not plead or prove the proceedings of the House and the persons who signed Exhibits A – D were not members of the Imo State House of Assembly and not officers of the Revenue Mobilization Allocation and fiscal commission. Because of the foregoing, counsel submitted that exhibits A-D are inconsistent with the provision of the constitution and the claims for allowances and salaries by the claimant cannot be sustained by the exhibits. What I understand the defendants to be saying in essence is that the claims for salaries by the claimants cannot be granted because the sums on which they base their claims was not prescribed by the Imo State House of Assembly and determined by the Revenue Mobilization Allocation and Fiscal Commission as required by the constitution. The defendants say that the position they have taken is based on the provision of Section 124 of the Constitution. I have considered that provision in the light of the facts presented by the defendants, and I find that the defendants have not shown that the salaries and allowances so agreed to be paid to the claimants upon their appointment is unconstitutional. Of particular importance to this issue is Subsection 1 of Section 124 which provides: There shall be paid to the holders of the offices mentioned in this section such remuneration and salaries as may be prescribed by a House of Assembly, but not exceeding the amount as shall have been determined by the Revenue Mobilisation Allocation and Fiscal Commission. From the above provision, the defendants have the burden to show that the sums in Exhibits A-D exceed the sums prescribed by the House of Assembly or that the sum exceeds the amount determined by the Revenue Mobilisation Allocation and Fiscal Commission. The defendants merely alleged that the sums were not prescribed by the House of Assembly, but failed to say what then was prescribed. Under cross examination, DW1 told this court that the House of Assembly prescribes a benchmark that determines the salaries payable to the Chairman and members of the Commission and that he “did not know when the House of Assembly last issued such a benchmark”. This means that DW1 does not know the existing salaries and allowances prescribed by the House of Assembly as payable to the claimants. How can he then be sure that the sums contained in Exhibits A-D were not based on an existing or previously prescribed bench mark by the House of Assembly? Be that as it may, the point must be made here that the claimants were informed in their appointment letter that they will be paid the sums as stated in their respective letters of appointment. The claimants’ appointment was a tenured contract. The letters became part of their contract of service and bind the parties. That is to say, at the time of their appointments, it was agreed between them and their appointor that they will be paid the sums stipulated in their appointment letters. Can it now be contended by anybody that the claimants are not entitled to such sums agreed to be paid to them? I think not. Of very serious concern to me in the contention of the defendants on this issue of the salaries and allowances of the claimants is their deliberate effort in this case to admit that their act was unconstitutional and illegal just to avoid their liability to the claimants. The claimants were appointed into their offices by the Governor of Imo State, the 1st defendant in this case, and they were informed in Exhibit A-D that they will be paid the sums stipulated therein. True to content of the exhibits, the claimants were paid the sums so stipulated from the time of their appointment on 2/3/2010 up till the last payment in January 2012; that is a period close to 2 years. It thus means that both the 1st defendant and the claimants have all the while relied and acted on Exhibits A-D until the termination of the claimants’ appointment. Section 169 of the Evidence Act 2011 provides as following: “When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.” See also A.G NASARAWA STATE vs. A.G. PLATEAU STATE (2010) 10 NWLR (Pt. 1309) 419. Exhibits A to D were issued to the claimants on the authority of the office of the 1st defendant and both the claimants and the defendants have relied on and acted on the content of the exhibit for about 2 years. The defendants cannot now be allowed to contend that the claimants are not entitled to be paid the salaries and allowances stipulated in the exhibits, to be paid to them. The defendants are estopped from denying their own documents. There is no dispute that the claimants have not received their salaries and allowances since February 2012. That is to say the claimants were last paid in January 2012. The evidence from the defendants also supports the claimants’ case that the defendants did not pay any salaries and allowances to the claimants from February 2012. 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 similar to this case where the Chairman and members of Ekiti State Independent Electoral Commission were unlawfully removed from office before the expiration of their 5 years 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” On the basis of my findings in this judgment that the claimants’ removal from office was null and void and there being an 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 February 2012 to February 2015. This order should be made in favour of the claimants even if they have not asked for it. It is the consequential remedy they are entitled to for the unconstitutional and unlawful interference with their appointment. In the sum of this judgment, except relief e which is refused, all other reliefs are granted. For the avoidance of doubt, this court doth pronounce as follows- 1. The termination of the claimants’ respective appointments as chairman and members of the Imo State Civil Service Commission is declared illegal, unconstitutional, null and void. 2. It is declared that the claimants are entitled to be paid the salaries and allowances attached to their offices as Chairman and members of the Imo State Civil Service Commission from the time of the last payment up till the time their tenure was supposed to lawfully expire. 3. The defendants are ordered to pay to the respective claimants the following sums being their salaries and allowances due to them from February 2012 up to February, 2015:- i. The 1st claimant (Mr. Robert O. Asuzu)- N28, 016, 955.00 ii. The 2nd claimants (Dr. Uche Donatus Edomobi)- N25, 317, 286.00 iii. The 3rd claimant (Mrs. Leticia Okere)- N25, 317, 286.00 iv. The 4th claimant (Mr. J.N. Nwosu)- N25, 317, 286.00 4. The above sums must be paid to the claimants 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. 5. Cost of N200,000.00 is also awarded to the claimants against the defendants. Judgment is entered. Hon. Justice O. Y. Anuwe Judge