Alhaji Hamza Dalhatu V. Attorney General, Katsina State & Ors (2007)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A

This appeal is against the Judgment of the Katsina State High Court of Justice, delivered on 1st day of November, 2005 by the Hon. Justice Sadiq Abdullahi Mahuta, the Chief Judge in Suit No. KTH/1/2005 wherein the Plaintiff’s suit was dismissed.

The facts of this case are as follows: The Plaintiff, (herein after referred to as the Appellant) was an employee of the Public Service of Katsina State.

Sometime on 3rd November, 1997 by special posting, he was seconded to the service of Katsina State Legislature. Thereafter, on 4th September, 2002 by a resolution of the Katsina State House of Assembly, (herein after referred to as the 4th Respondent) the Appellant was appointed a Clerk of the 4th Respondent in accordance with the provisions of the 4th Respondent’s Staff Law No.5, 2001.

Subsequently, by a letter dated 30th December, 2004 from the Office of the Head of the Civil Service, Katsina State, (herein after referred to as 2nd Respondent) the Appellant was purportedly removed from the 4th Respondent as the Clerk of the House requesting the Hon. Speaker of the 4th Respondent, (herein after referred to as 3rd Respondent) to release the Appellant for redeployment to the mainstream Civil Service of the State. The 3rd Respondent later obliged the request of the 2nd Respondent and by his letter dated 4th January, 2005 requested the Appellant to report to the 2nd Respondent’s office. One Bello Iro Dabai was later made to replace the Appellant as Clerk of the 4th Respondent.

Aggrieved by his redeployment from the 4th Respondent, the Appellant filed an action by Originating Summons praying the lower court for the determination of the following question with the consequential reliefs-

“Whether in view of the combined effect of the Provisions of Section 93 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 6, 13 and 18 of the Katsina State House of Assembly Staff Law No. 5 of 2001 relating to the appointment of the Plaintiff as Clerk of the Katsina State House of Assembly, and the Provisions of Section 8 of the said Law No.5 of 2001 relating to the removal of the Plaintiff as Clerk of the Katsina State House of Assembly, the Defendants have power or right to remove the Plaintiff as Clerk of the said House of Assembly by the redeployment of the Plaintiff to the mainstream Civil Service of Katsina State via letter reference No. KTS/HOS/S/31/S.1/VOL.II/486 dated 30th December, 2004 emanating from the office of the Head of Service Katsina State and corresponding letter reference No. S/KTHA/ADM/15/VOL.1/12 dated 4th January, 2005 from the Office of the Honourable Speaker Katsina State House of Assembly without due regard and compliance with the procedure prescribed for the removal of the Plaintiff as Clerk of the Katsina State House of Assembly by Section 8 of the Katsina State House of Assembly Staff Law No.5, 2001.

CONSEQUENTIAL RELIEFS:

1. DECLARATION that the Defendants have no power or right to remove the Plaintiff as Clerk of the Katsina State House of Assembly through redeployment of the Plaintiff to the mainstream Civil Service of Katsina State in the manner purported to be done by the Defendants or in any other manner howsoever except in accordance with the Provisions of the Katsina State House of Assembly Staff Law No.5, 2001.
2. DECLARATION that the Plaintiff’s purported removal as Clerk of the Katsina State House of Assembly by the Defendants via letter Reference

No.KTS/HOS/S/31/S.1/VOL.II/486 dated 30th December, 2004 and letter reference No. S/KTHA/ADM/15/VOL.I/12 dated 4th January, 2005 redeploying the Plaintiff to the mainstream Civil Service of Katsina State was ultra vires, illegal, null, void and of no effect whatsoever.

3. AN ORDER setting aside any step or direction or order of the Defendants which seeks to interfere with or violates the Plaintiff’s right to the office of the Clerk of Katsina State House of Assembly to which the Plaintiff was duly appointed in accordance with the Katsina State House of Assembly Staff Law NO.5, 2001.
4. AN ORDER that the Plaintiff is still the Clerk of the Katsina State House of Assembly.
5. AN INJUNCTION restraining the Defendants, their servants, agents or privies from removing or purporting to remove the Plaintiff as a Clerk of the Katsina State House of Assembly in any manner howsoever save in accordance with the provisions of the Katsina State House of Assembly Staff Law NO.5, 2001.
6. AND FOR such further consequential order or orders as this Honourable Court may deem fit to make in the circumstance.”

The Respondents filed two separate Notices of Preliminary Objection. The 1st and 2nd Respondents filed one, while the 3rd and 4th Respondents filed the other, both dated 1st day of February, 2005 respectively. On 23rd February, 2005, the Preliminary Objection of the 3rd and 4th Respondents was taken by the trial court. The counsel to the 1st and 2nd Respondents associated with the objection of 3rd and 4th Respondents and adopted the counsel’s submissions as his own. He urged the court to strike out the objection filed by the 1st and 2nd Respondents and this was accordingly struck out by the Court.

On 14th April, 2005, the Preliminary Objection of the 3rd and 4th Respondents was overruled by the court and the suit proceeded to hearing. In his judgment of 1st November, 2005, the trial court

dismissed the Plaintiff’s case. Dissatisfied with that decision of the lower court, the appellant filed an appeal with three grounds of appeal contained in the Notice of Appeal dated and filed on 31st January, 2006. The said three grounds of appeal are as follows:-

“GROUNDS OF APPEAL

1. ERROR IN LAW

The learned trial judge erred in law when he held in the following passage of the judgment of the court thus:

“In conclusion this court is of the view that all points germane to the resolution of the issues raised in the originating summons of the Plaintiff, it is my considered opinion that the reliefs sought by him in the originating summons cannot be granted particularly consequential reliefs Nos. 1-4 which means relief No.5 thereof is only of academic importance. This is because the Plaintiff has woefully failed to adduce evidence enough to persuade this court to grant the reliefs he sought.”

PARTICULARS

(i) The Appellant had proffered sufficient evidence to the honourable court to entitle him to a grant of the relief being sought.

(ii) The learned trial judge had made a number of important findings of uncontradicted evidence on the record to support a grant by the honourable court of the reliefs sought by the Appellant.

2. ERROR IN LAW

The learned trial judge erred in Law in holding in the following passage of the judgment of the court, thus:

“As long as the Plaintiff, who had incidentally received promotions and advancements with the mainstream civil service he would be deemed to be a staff of the civil service until either himself or the Civil Service have (sic) decided to dispense with each other and this must follow the established procedure in the Civil Service Rules, and one of which was for the Plaintiff to either retire, resign or convert his appointment from the civil service to the State Legislature.”

PARTICULARS

(i) On secondment, the Appellant becomes a full-fledged staff of the legislature.

(ii) The Appellant’s promotions and advancements in the mainstream civil service of the state while on secondment are notional to put the Appellant on a par with his colleagues in the civil service if the Appellant decides to come back to the mainstream civil service of the state.

(iii) On secondment, the Appellant was not bound to retire, resign or convert his appointment from the State Civil Service to the State Legislature.

3. ERROR IN LAW

The learned trial judge erred in law in holding that the fact that the 2nd Respondent had recalled the Appellant from the services of the 4th Respondent does not mean that the Plaintiff was removed by the 2nd Respondent.

PARTICULARS

(i) The purport of the recall of the Appellant to the mainstream civil service of the State by the 2nd Respondent was to remove the Appellant from the office of the Clerk of the 4th Respondent.

(ii) The learned trial judge had on the record alluded to the fact that the recall of the Appellant by the 2nd Respondent was a removal of the Appellant from the office of the Clerk of the 4th Respondent.”

From the above three Grounds of Appeal, the Appellant distilled the following three issues for the determination of this appeal.

ISSUES FOR DETERMINATION

“1 Whether the trial court was right in its conclusion that the Plaintiff (Appellant) had failed to adduce sufficient evidence to entitle him to a(sic) grant of the reliefs being sought.

2. Whether the trial court was right that in view of the promotions and advancements the Plaintiff (Appellant) receives in the mainstream civil service, the Appellant, who is on secondment, remains a staff of the State Civil Service until the Appellant retires, resigns or converts his appointment from the civil service to the State Legislature.
3. Whether the recall of the Plaintiff (Appellant) by the 2nd Respondent from the services of the 4th Respondent was not a removal of the Plaintiff (Appellants from the Office of the Clerk of the 4th Respondent. ”

In arguing the appeal, learned counsel to the Appellant took the issues one after the other. Issue No.1 stems from ground one of the grounds of appeal. He referred to the portion of the trial court’s judgment in respect of this ground at pages 111 – 112 of the printed record of appeal. Learned Counsel contended that the trial court was in grave error when it held that the Appellant had failed to adduce enough evidence to persuade the court to grant the reliefs being sought by the Appellant in the Originating Summons. On the contrary, the Appellant had proffered sufficient evidence to the Honourable Court to entitle him to a grant of the reliefs sought. He referred to the evidence relied upon by the Appellant’s Sixteen(16) paragraphs affidavit in support of the Originating Summons together with the attached annexure marked as Exhibits A – I.

Learned Counsel made reference to the findings of the trial judge as stated in the record of appeal at pages 109 – 110 and submitted that having found as he did, the trial court was in manifest error to have held that the Appellant has woefully failed to adduce enough evidence to persuade the court to grant the reliefs sought. He further submitted that where a trial court is faced with an unchallenged and uncontroverted evidence it has no alternative but to act upon it and find infavour of the party concerned. He cited; Yesufu v. Kupper International N.Y. (1994) 4 SCNJ 40 at 56 – 57. He urged the court to resolve issue No. 1 infavour of the Appellant.

On issue NO.2, which appellant says takes its roots from ground 2 of the Notice of Appeal, learned counsel contended that the trial court was in error in holding that since the Appellant receives promotions and advancements with the mainstream civil service he was deemed to be a staff of the State Civil Service unless the Appellant retires, resigns or converts his appointment from the civil service to the State Legislature.

Learned Counsel further contended that the terms and conditions of employment of the Appellant including his secondment are governed by the Katsina State Civil Service Rules, 1977 which by virtue of Section 3 of the Modification of Laws (Katsina State) Order, 1998 is adopted as the Civil Service Rules of Katsina State. Learned Counsel referred to paragraph 3 of the supporting affidavit and Exhibit A attached thereto and submitted that the appellant’s redeployment to the 4th Respondent was on special posting. And the special posting was under Rule 02601 (b)(iii) of the State Civil Service Rules and the secondment was for unlimited period.

Learned Counsel further submitted that there is nothing in the said Rule 02601(b)(iii) or any other

rule of service applicable to the Appellant on secondment to retire, resign or convert his appointment from the Civil Service to the State Legislature. He submitted that on secondment the Appellant becomes a full fledged staff of the Legislature and as a Clerk, the Head of Service of the Legislature. He referred to Sections 12, 13, 17 and 18(2) of Katsina State House of Assembly Staff Law No.5, 2001. Learned Counsel finally submitted that the Appellant’s promotions and advancements in the mainstream Civil Service of the State are notional to put the Appellant on a par with his colleagues in the civil service if the Appellant comes back to the mainstream civil service. He urged the court to resolve issue NO.2 infavour of the Appellant.

Issue No. 3 is said to have been distilled from ground 3 of the Notice of Appeal. Learned Counsel

contended that the trial court was in error in holding that the Appellant’s recall from the services of the 4th Respondent by the 2nd Respondent did not mean that the Plaintiff was removed by the 2nd Respondent.

He submitted that the purport of the recall of the Appellant to the mainstream Civil Service of the State by the 2nd Respondent was to remove the Appellant from the Office of the Clerk of the 4th Respondent. On what is meant by “removal,” learned counsel referred to Black’s Law Dictionary, 7th edition at page 1298 and page 109 of the record of appeal as acknowledged by the trial judge. He urged this court to resolve issue No.3 infavour of the Appellant. In conclusion, learned counsel urged the court to allow the appeal and set aside the decision of the trial court.

On 19th February, 2007, the 1st and 2nd Respondents’ joint brief of argument dated 30th January, 2007 was deemed by the court to have been properly filed and served, having been filed out of time. The learned counsel to the 1st and 2nd Respondents adopted the three issues formulated by the appellant and argued the appeal based on the said issues.

On Issue NO.1, learned counsel contended that the trial court was right in holding that the Appellant failed to adduce convincing evidence to warrant the grant of the reliefs he sought in his Originating Summons. He referred to the record of proceedings and the printed record of appeal.

Learned Counsel contended that the original contract of service of the Appellant was with the 2nd

Respondent who posted him to the 4th Respondent on secondment on special duty under the Civil Service Rules. He therefore submitted that Section 8 of the Katsina State House of Assembly Staff Law, 2001, which the Appellant employed in prosecuting his case was inapplicable and he urged the court to so hold.

He cited; Alhaji Salami Olaniyi v. Gbadamosi Aroyehum and 7 Ors. (1991) 5 NWLR (Pt. 194) 652 at 660.

Learned Counsel further referred to the record of appeal, in particular, the affidavit evidence adduced by both parties. He referred to the cases of Evans Brothers v. Falaiye (2003) 3 FR 124 at 142 and A.B.U. & 1 Or. v. Dr. (Mrs) Molokwu (2003) 11 FR 223 at 238 referred to by the trial judge in his judgment and submitted that the cases were not relevant to the case in hand. He concluded that the Appellant was seconded to the 4th Respondent by the 2nd Respondent pursuant to the Civil Service Rules and he was recalled under the same Rules but not under Katsina State House Assembly Staff Law No.5, 2001. He urged the court to resolve this issue against the appellant and dismiss the appeal with substantial costs.

On Issue No.2, learned counsel to 1st and 2nd Respondents submitted that the lower court was right in holding that the Appellant was on secondment and therefore had to take other steps to convert his appointment with Katsina State House of Assembly to a permanent appointment from being on secondment.

To show that the Appellant was temporarily posted to the 4th Respondent but remained a staff of the State Civil Service, learned Counsel referred to the record of appeal to show that between 1997 and the time he was recalled back to the mainstream, the Appellant received three promotions from the Governor’s Office from where he was seconded to serve at the 4th Respondent.

Learned Counsel referred to Rule 02601(b)(iii) of the State Civil Service Rules and submitted that the Rule confirms that the Appellant was on secondment and posted to the 4th Respondent but remained in the Civil Service of the state, guided by the Civil Service Rules of the State. He urged the court to resolve issue No.2 against the appellant and dismiss the appeal.

On issue No.3, learned counsel contended that the trial judge was right when he held that the 2nd Respondent’s action did not amount to or constitute removal of the Appellant as Clerk of the 4th Respondent. He submitted that all the 2nd Respondent did was to recall his Officer to fill vacancy that was created with the retirement of other staff of the Civil Service under the same State Civil Service Rules. He submitted further that the Appellant was not removed but rather was recalled by the 2nd Respondent. He cited; Jallco Limited & Anor vs. Owoniboys Technical Services Limited (1995) 4 NWLR (pt 391) 534 at 538.

Learned counsel finally urged the Court to hold that the Appellant indeed failed to adduce convincing evidence to warrant the grant of his reliefs sought at the lower court and consequently dismiss the appeal with substantial costs against the Appellant.

Similarly, the joint brief of argument of the 3rd and 4th Respondents dated 18th September, 2006 was deemed to be properly filed and served on 19th February, 2007 having been filed out of time. In the said brief of argument, learned counsel did not formulate any separate issue for determination. He adopted the three issues formulated by the Appellant in his brief of argument for the determination of this appeal.

On Issue No.1, learned counsel submitted that the trial Court was right in its conclusion that the Appellant failed to adduce sufficient evidence to entitle him to the reliefs sought by him. He referred to the reliefs sought by the Appellant, the affidavit and documentary evidence adduced by the Appellant as contained in the record of appeal.

Learned counsel contended that none of the documents supported the allegation or complaint by the Appellant that he was removed from Office by the Respondents. All the documents instead support the fact that the Appellant was only redeployed to the mainstream civil service from where he was earlier on seconded to the 4th Respondent. Learned counsel submitted that there was misconception from the way the learned Appellant’s counsel argued this point. He submitted and in my view rightly too, that an employer who has the right to second an employee also has the power to recall such employee. He referred to Rule 02601 of the Civil Service Rules.

On the alleged unchallenged and uncontroverted evidence of the Appellant as alluded to by his counsel, learned counsel referred to the counter affidavit filed to oppose the originating summons of the Appellant. He however, submitted that, assuming without conceding that there were unchallenged and uncontorverted evidence of the Appellant, the Appellant had to succeed on the strength of his own case but not on the weakness of the defence. He submitted further that where the unchallenged evidence is not sufficient to warrant the granting of the reliefs sought, the Court will not grant the reliefs. He urged the Court to resolve the issue against the Appellant and dismiss the appeal.

On Issue No.2, learned counsel submitted that the trial Court was right in its conclusion that in view of the promotion and advancement the Appellant received in the mainstream civil service, being on secondment, the Appellant remained a Staff of the Katsina State Civil Service until he either retires, resigns or converts his appointment from the civil Service to the State Legislature.

Learned counsel contended that the resolution of the 2nd issue was dependent on the interpretation of Rule 02601 of the Civil Service Rules under which the Appellant was seconded by special posting to the 4th Respondent. He submitted that the provisions of the rule are clear and unambiguous, hence the literal rule of interpretation should apply. He cited; Egwunewu vs. Eieagwu (2006) All FWLR (pt 324) 1893 at 1905.

Learned counsel referred to the affidavit in support of the Appellant’s Originating Summons where Appellant clearly admitted that he was on secondment from the Governor’s Office, then called, Military Administrator’s office. He also referred to Exhibit A annexed to the affidavit, which is the letter of the special posting. Learned counsel referred to the Civil Service Rules pursuant to which the Appellant was seconded to the 4th Respondent and submitted that the movement of the Appellant to the 4th Respondent was not transfer, which is permanent but secondement which is temporary. He submitted further that there was no basis for reference to or reliance on the Katsina State House of Assembly Staff Law, as the Civil Service Rules provide fully for the Appellant’s case. The reference to the provisions of the said Staff Law of 4th Respondent was a misconception by the Appellant as the law is irrelevant and inapplicable. He cited; Lawson-Jack vs. Shell (2002) 7 SCNJ 121 at 132, Halim vs. P.D.P. Delta State Chapter & 3 Ors. (2006) All FWLR (pt 302) 1 at 17 – 18, Aremo II vs. Adekanye (2004) 7 SCNJ 218 at 231 – 232, Ojukwu vs. Obasanjo (2004) 12 NWLR (pt 886) 169 at 227 – 228.

Learned counsel submitted that the Staff Law of 4th Respondent cannot be made applicable to the Appellant’s case on the accrued right of the 2nd Respondent on the secondment and recall of the Appellant. He urged the Court to resolve the issue against the Appellant and dismiss the appeal.

On Issue No.3, learned counsel submitted that the trial court was right in holding that the recall of the Appellant from the services of the 4th Respondent by the 2nd Respondent was not a removal from the Office of the Clerk of the 4th Respondent. Learned counsel contended that it is clear from the originating summons of the Appellant that the Appellant was not challenging his recall to the mainstream civil service by virtue of the provisions of the Civil Service Rules. Instead he challenged his alleged removal from the office of Clerk of the 4th Respondent under the Katsina State House of Assembly Staff Law, 2001.

Learned counsel submitted that it is of no moment that the recall of the Appellant to the mainstream civil Service had the effect of making the Appellant vacate the office of Clerk of the 4th Respondent as submitted by the Appellant’s counsel.

Learned counsel contended that the issue is whether or not the 2nd Respondent had the power to recall the Appellant once this power was exercised in good faith as there is nothing on the record to show that the recall was done in bad faith. Indeed it was the 2nd Respondent’s right to recall the Appellant that was questioned in the summons but not the motive in recalling the Appellant.

Learned counsel finally urged the Court to dismiss the appeal on all the issues raised.

On 23rd February, 2007, the Appellant filed a reply brief to the briefs of argument of the Respondents together. Learned counsel to the Appellant made references to the submissions of the counsel to the Respondents in their respective briefs of argument and submitted that the Court must confine itself to the issues for determination before it in an appeal to the exclusion of other issues not canvassed before it. He relied on the case of Elakhame vs. Osemobor (1991) 6 NWLR (pt 196) 1.

He urged the Court to strike out or discountenance the offending paragraphs of the Respondents’ brief of argument.

As shown earlier in this judgment, the Appellant’s case was fought at the court below on an originating summons. The Appellant prayed the trial court for determination of a particular question and sought some consequential reliefs. For better understanding of the issue involved I like to restate the question raised in the said originating summons inter-alia as follows:

“whether in view of the combined effect of the provisions of Section 93 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 6,13 and 18 of the Katsina State House of Assembly Staff Law No. 5 of 2001 relating to the appointment of the Plaintiff as Clerk of the Katsina State House of Assembly, and the provisions of Section 8 of the said Law No. 5 of 2001 relating to the removal of the Plaintiff as Clerk of the Katsina State House of Assembly, the Defendants have power or right to remove the Plaintiff as Clerk of the said House of Assembly by the redeployment of the Plaintiff to the mainstream Civil Service of Katsina State, without due regard and compliance with the procedure prescribed for the removal of the Plaintiff as Clerk of the Katsina State House of Assembly by Section 8 of the Katsina State House of Assembly Staff Law No.5, 2001”

The facts relied on by the Appellant to prove his case are contained in the affidavit personally deposed to by the Appellant. It reads as follows –

“AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, Alhaji Hamza Dalhatu, Adult, Male, Muslim, Nigeria citizen, resident of Batagarawa, Batagarawa Local Government Area, Clerk, Katsina State House of Assembly do make oath and state as follows:

1. That I am the Plaintiff in this suit.
2. That by virtue of my position aforesaid I am familiar with the facts deposed to herein.
3. That on 3rd March, 1997 I, along with some other persons, were seconded from the then Military Administrator’s Office, Katsina State on special posting to Katsina State House of Assembly. The letter of my special posting is hereto attached and marked as Exhibit ‘A’.
4. That at its sitting of 8th January, 2002 the Katsina State House of Assembly (hereinafter referred to as ‘the Honourable House’) appointed me as Acting Clerk of the Honourable House from my former post of Deputy Clerk. The votes and proceedings of the Honourable House of 8th January, 2002 is hereto attached and marked as Exhibit ‘8’.
5. That in a letter reference No. S./KTHA/173/VOL.1/4 of 9th January, 2002 the then Honourable Speaker of the Honourable House conveyed to me notification of my appointment as Acting Clerk of the Honourable House. The said letter is hereto annexed and marked as Exhibit ‘C’
6. That at its sitting of 4th September, 2002 the Honourable House appointed me as the substantive Clerk of the Honourable House. The votes and proceedings of the Honourable House of 4th September, 2002 is hereto attached and marked as Exhibit ‘D’.
7. That in a letter reference No.S/KTHA/173/VOL.1/8 dated 9th September, 2002 the then Honourable Speaker of the Honourable House conveyed to me the notification of my appointment as substantive Clerk of the Honourable House. The said letter is hereto annexed and marked as Exhibit ‘E’.
8. That in a letter reference No.KTS/HOS/S/31/S.1/VOL.II/486 dated 30th December, 2004 addressed to the 3rd Defendant the Head of Service of Katsina State purported to remove me from the service of the State Legislature as a Clerk by requesting the 3rd Defendant to release me for redeployment to the mainstream of the State Civil Service. The said letter is hereto attached and marked as Exhibit ‘F’.
9. That in a reply to the letter referred to in paragraphs 8 above, the 3rd Defendant in a letter reference No. S/KTHA/ADM/15/VOL.1/12 dated 5th January, 2005 and addressed to the Head of Civil Service Katsina State purported to formally release me and requested the deployment of one

Bello Iro Dabai to replace me as Clerk of the Honourable House. The 3rd Defendant further requested me to report to the office of Head of Service Katsina State for reassignment in the mainstream Civil Service of the State. The said letter is hereto attached and marked as Exhibit ‘G’

10. That as a result of the happenings in paragraph 9 above, I officially minuted to the 3rd Defendant on 4th January, 2005 drawing his attention to the relevant provisions of the law regarding the impropriety of my removal to which the 3rd Defendant minuted back on 5th January, 205(sic) that my suggestion was not needed as I was henceforth the employee of the civil service. The said minutes are hereto attached and marked as Exhibit ‘H’
11. That in a letter reference No. KTS/IEC/ADM/28/VOL.1 dated 4th January, 2005 the said Bello Iro Dabai was redeployed from Katsina State Independent Electoral Commission to Katsina State House of Assembly on which letter the 3rd Defendant directed that Bello Iro Dabai should take over from me as Clerk of the Honourable House. The said letter is hereto attached and marked as Exhibit ‘I’.
12. That I have not at the material time to this suit handed over the affairs of the office of the Clerk to the said Bello Iro Dabai.
13. That prior to my purported removal as Clerk of the Honourable House I have never been confronted with any allegation of misconduct or other improprieties by the Legislature nor have I been investigated in respect of any such misconduct or improprieties.
14. That my purported removal was not as a result of any resolution passed by the 4th Defendant.
15. That the Defendants will not be prejudiced by the grant of the reliefs prayed by me.
16. That I swear to this Affidavit in good faith conscientiously believing same to be true and correct in accordance with the Oaths Act.”

In opposing the Originating Summons, the Respondents filed their respect counter affidavits as follows:

“FIRST AND SECOND DEFENDANTS’ COUNTER AFFIDAVIT

I BASHIR SANI, Male, Muslim, Adult, Nigerian citizen of Attorney General’s Chambers, Ministry of Justice, State Secretariat Complex, IBB Way, Kano Road, Katsina, do hereby make oath and state as follows:

1. That I am the litigation Officer in the aforementioned Chambers and by virtue of my position aforesaid I am familiar with the facts of this case.
2. That I have the authority and consent of my Employers and the Defendants to depose to the facts as contained in the Counter Affidavits.
3. That I am informed in his office by the counsel handling the matter Falalu Darma Esq whom I verily believe of the facts deposed to in the succeeding paragraphs of the Counter Affidavit.
4. That the Affidavit in Support of the originating summons did not in any way whatsoever conveyed(sic) the correct position of the facts in issue(sic) in otherwords, it is one sided view or opinion of the Plaintiff.
5. That the correct position of the facts are that on the 3rd day of March, 1997 the Plaintiff together with some members of staff were deployed on special posting to the Katsina State House of Assembly.
6. That from that period to date the plaintiff did not relinquished(sic) his appointment with the state Civil Service Commission before or after accepting appointment with the Katsina State House of Assembly.
7. That in view of paragraph 6 the plaintiff still remain in the main stream of the Katsina State Civil Service in the Office of the Head of Service.
8. That he enjoyed his normal promotions in the Governor’s office while on special posting to the Katsina State House of Assembly(sic) in otherwords, while there he received three promotions, the latest one being the Assistant Director (Administration) on Grade level 15 with effect from; 1st day of January, 2001.
9. That in view of paragraphs 7 and 8 the plaintiff is subject to be deployed at anytime to any place as circumstances warrants{sic)” or permit.
10. That following the retirement of some Directors, the plaintiff was called back to the mainstream because his services were needed and Katsina State House of Assembly released him formally, however, the plaintiff failed to report after the recall.
11. That within the period the plaintiff also refused to report for duty at Katsina State House of Assembly or Ministry of Justice as Director Administration and Supply.
12. That on the 5th of January 2005 one Bello Iro Dabai had since assumed duty as clerk of the Katsina State House of Assembly and started to discharge the responsibilities reposed upon him.
13. That plaintiff vacated office since the redeployment exercise and even surrendered Government vehicles which the incumbent is now utilizing in performing his official duties.
14. That the plaintiff cannot enjoy the benefit or privilege of discharging his duties or services under two different Establishments i.e. State Legislative(sic) and Office of the Head of Service.
15. The Defendants will be severely prejudiced by the grant of the reliefs sought by the plaintiff.”

“3RD AND 4TH DEFENDANTS’ COUNTER-AFFIDAVIT

I Kabir Saidu Esq, adult, male, Moslem, Nigerian, Legal practitioner, Civil servant residing at no. 6 Kankai close, Ahmadu Coomasie Housing Estate; Katsina do make Oath as follows:

1. That I am the Director Legal Services of the 4th defendant.
2. That I have the authority of the 3rd and 4th defendants to depose to this counter-affidavit containing facts which I am conversant with by virtue of my position aforesaid.
3. That this counter-affidavit is in opposition to the facts contained in the plaintiff’s affidavit dated 10th January, 2005 in support of the originating summons.
4. That I was informed by Hon. Kabir Ahmed Kofa, the Hon. Speaker of the Katsina State House of Assembly after the service of the originating summons on the defendants and I verily believe as follows:

(a) That the facts contained in paragraphs 1,2,12,15 and 16 of the said plaintiff’s affidavit are not true or correct more especially as the plaintiff was no longer the Clerk of the 4th defendant when he deposed to the affidavit.

(b) That the plaintiff who was seconded to the 4th defendant on special posting was recalled or redeployed to the mainstream civil service by his employer.

(c) That the 3rd and 4th Defendants had no choice but to release the plaintiff to his employer as requested.

(d) That the Plaintiff immediately vacated his office as the Clerk of the 4th Defendant and Alhaji Bello Iro Dabai took over as the Acting Clerk of the 4th Defendant.

(e) That the Plaintiff did not resign his appointment in the Katsina State Civil Service but had all along been receiving notional promotions. ”

Before I proceed to treat the issues raised for the determination of this appeal, I consider it necessary to state the following facts deduced from the affidavit and documentary evidence adduced by both parties not indispute between the parties. They are therefore deemed as established and need no further proof.

That the Appellants was an employee of the Katsina State Civil Service, whose employment generally was guided by the Civil Service Rules of Kaduna State, made applicable to Katsina State by virtue of Katsina State (Modification of Laws Order, 1998).

That the Appellant was deployed from the Military Administrator’s office on 3rd March, 1997, along with some others in the Civil Service to the Katsina State Legislature, that is the 4th Respondent herein. (See; Exhibit A attached to the affidavit in support of the Originating Summons).

That at its sitting on 8th January, 2002, the 4th Respondent appointed the Appellant as an Acting Clerk of the House of Assembly in accordance with the provisions of Section 6( 1) of the Katsina State House of Assembly Staff Law of 2001. The appointment of the Appellant as Clerk of the 4th Respondent was later confirmed with effect from 9th January, 2002. (See; Exhibits C and E respectively).

While in the service of the 4th Respondent, the Appellant received promotions and advancement from the State Civil Service, the last one being as the Assistant Director (Administration) on Grade Level 15 with effect from 1st January, 2001.

Sometime in December, 2004 the 3rd Respondent, the Head of the 4th Respondent was requested by the 2nd Respondent as the Head of Service to release the Appellant for redeployment from the 4th Respondent back into mainstream State Civil Service of Katsina State.

The request of the 2nd Respondent was met by the 3rd Respondent whereby the Appellant was caused to be released and asked to report to the office of the 2nd Respondent. (See; Exhibit G attached to the Originating Summons).

One Bello Ira Dabai, an Officer in the Katsina State Independent Electoral Commission was deployed to replace the Appellant and he was to take over from the Appellant immediately on 5th January, 2005.

It is trite law that unchallenged facts in an affidavit or counter affidavit are deemed admitted and should be believed and relied on by the Court. See; Honda Place Ltd. v. Globe Motors Holdings Nig. Ltd. (2005) 10 – 11 SCM 56.

It is equally trite law that what is admitted expressly in a pleading requires no further proof, such

fact is rendered as established and may be accepted as one of the agreed facts of the case. See; British India General Insurance Co. Ltd. v. Tharwadan (1978) 3 SC 143 at 149, A.C.B. Ltd. v. Alhaju Umaru Gwagwada (1990) 5 NWLR (pt 343) 25 at 42. Obasi bros Merchant Co. Ltd. v. Merchant Bank etc. (2005) 10WRN 1 at 26.

There is no doubt and the fact is also not indispute that the posting of the Appellant to the 4th Respondent sometime in 1997 was done pursuant to the Civil Service Rules applicable in Katsina State.

Similarly, the appointment and confirmation of the appellant as Clerk of the 4th Respondent was done pursuant to the provisions of the Katsina State House of Assembly Staff Law No.5 of 2001.

The relevant provisions of the Civil Service Rules pursuant to which the Appellant was posted to the 4th Respondent reads thus –

“SECTION 6 – TRANSFERS AND SECONDMENT 02601 – TRANSFER is the permanent release of an officer from one service to another or from one class to another within the same service.

SECONDEMENT means the temporary release of an officer to the service of another Government or Body for a specified period.

Inter-service, Transfer and Secondment – (a) Transfer of officers and employees between the State Public Service and another Public service are conducted through and subject to the approval of the State Public Service Commission which shall be furnished with Annual Performance Evaluation Reports covering the last three years (or whole service if less than three years) of the officer’s service.

(b) Secondment – (i) Secondment of officers to the service of other Government or other bodies such as Statutory Corporation is also conducted through and subject to the approval of the State Public Service Commission but the terms of such secondments are a matter for the Ministry of Establishments and Training.

(ii) Secondment of an officer to the service of another Government or Approved Body at his own request shall be for a maximum period of three years, during which period he will be required to elect to be permanently released to the service to which he had been seconded or revert to his former post. He will be entitle to notional increment during the period of his secondment and may be granted notional promotion by the State Public Service Commission on his desecondment in order to restore his seniority as a result of the promotion of others during his absence.

(iii) If it is in the public interest to second an officer to the service of another Government or Approved Body, the period of secondment shall not be limited and the officer shall continue to hold his substantive post and be entitled to increment and promotion, and will be treated as having been posted on special duty.”

Similarly, the Law pursuant to which the Appellant was appointed Clerk of the 4th Respondent defines “Clerk” as “the Clerk to the Legislature appointed under Section 6 whose rank shall be equivalent to that of a Permanent Secretary;”

Section 6 reads as follows:

“(i) There shall be appointed, by a resolution passed by the Legislature, a Clerk who shall be the accounting officer of the Legislature and responsible for the execution of its day to day business.”

On the removal of Clerk of the House, Section 8 of the Law provides thus:

“(1) The Clerk shall not be removed from office save in accordance with the provisions of the Section.

(2) Whenever a notice of any allegation against the Clerk made in writing and signed by not less than two-thirds of the members of the Legislature is made to the Speaker stating detailed particulars of the allegations, the Speaker shall cause the matter to be for investigated and a report submitted to the Legislature.

(3) The Clerk shall have a right to defend himself in person or by a representative of his awn choice at any investigation set up under subsection (2).

(4) Where the report establishes that the allegation is correct, the Legislature may, by a resolution supported by a simple majority, remove the Clerk from Office.”

Now to the Issues far determination of this appeal. As I stated earlier, neither the 1st and 2nd Respondents nor the 3rd and 4th Respondents formulated any separate issues from the grounds of appeal filed by the Appellant. They respectively argued the appeal based on the three issues distilled by the Appellant from his grounds of appeal.

Issue Na. 1 is whether the trial court was right in its conclusion that the Plaintiff(Appellant) had failed to adduce sufficient evidence to entitle him to the grant of the reliefs sought.

As clearly shown in this case, it was an action commenced by Originating Summons. In actions prosecuted through an originating summons, such as the instant case, facts, it has been held, do not have a pride of place in the proceedings as they do in action instituted by Writ of Summons, whereby pleadings are ordered by the Court and exchanged by parties.

Witnesses are called to give evidence and be cross examined if necessary. In an action commenced by Originating Summons, the centre point is the consideration of the applicable law and its construction by the Court. Therefore, affidavit evidence and documents are mostly the materials to be considered by the Court. In otherwords, rather than considering facts, if any, in dispute, usually none, it is mostly questions of law. See; Inakoiu & Ors. v. Adeleke & Ors. (2007) 1 SCM 1 at 44 and 185, Famfa Oil Ltd. v. A.G. of the Federation (2003) 18 NWLR (pt 852) 453, (2003) 12 SCM 85, (2003) 51 WRN 1.

In the instant case, the Appellant’s complaint was that he was removed as Clerk of the 4th Respondent in contravention of the provisions of the enabling Law.

That is, the Staff Law No. 5 of 2001, of the Katsina State House of Assembly.

The act of removal is a fact. But whether or not the Appellant was removed from office as Clerk is an assertion by the Appellant which he must prove or establish by affidavit and or documentary evidence.

The word removal is the transfer or moving of a person or thing from one location, position, or residence to another. See; Black’s Law Dictionary, 8th Edition.

Generally, when a Clerk of the House of Assembly is to be removed, the removal is carried out by those who appointed the Clerk, and that is members of the Legislature. In any case, whenever a Clerk is to be removed, there must be a notice of an allegation against the Clerk made in writing and duly signed by not less than two-thirds of the members of the Legislature. The notice must be made to the Speaker stating detailed particulars of the allegations and the Speaker shall cause the matter to be investigated and a report submitted to the Legislature. It is after the Clerk must have been given opportunity to defend the allegations and the report establishes that the allegations are correct that the Clerk is to be removed by resolution of a simple majority of the Legislature. See; KTSHA Staff Law No.5 of 2001.

In the instant case, the affidavit evidence and all documents annexed as Exhibits as shown above did not show that any allegation was raised against the Appellant. Similarly, there is no evidence that the 4th Respondent met on any matter concerning the Appellant. Indeed, what is contained in the affidavit and documentary evidence alluded to by the Appellant is that the 2nd Respondent requested the 3rd Respondent to release him for redeployment back to the mainstream civil service from where he came on secondment in the first instance.

By the provisions of Section 135 of the Evidence Act, Cap 112 Laws of the Federation, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It is therefore settled law that the burden of proof of the assertion is on the Plaintiff/Appellant who asserts. See; Akinreti vs. Jenyo (1986) 2 NWLR (pt 22) 305, Elias vs. Disu (1962) 1 SCNLR 361, Abiodun vs. Adehin (1962) 2 SCNLR 305, University Press Ltd. v. I.K. Martins (Nig) Ltd. (2000) 4 NWLR (pt 654) 584, Emeka vs. State (2001) 6 SC 227, Attorney General, Bayelsa State vs. Attorney General, Rivers State (2006) 12 SCM (pt 2) 1 at 21 – 22, (2007) 8 WRN 1 at 28.

It is interesting and important to note that the Appellant agreed that he was seconded by special posting from the mainstream civil service to the 4th Respondent.

There is no doubt that neither the 2nd nor the 3rd Respondents has the power jointly or severally to remove a Clerk of the 4th Respondent. The procedure for the removal of Clerk is as has been given above.

There is however undisputable fact that when the Appellant was recalled by and released to report to the office of 2nd Respondent as head of Service, he was given yet another posting to the Ministry of Justice, Katsina State, as Director of Administration and supply.

The trial Court was therefore right to conclude that the Appellant failed to adduce sufficient evidence to entitle him to the grant of the reliefs sought.

Accordingly, Issue No. 1 is resolved against the Appellant.

The second issue is whether the trial court was right that in view of the promotions and advancements the Plaintiff/Appellant received in the mainstream civil service, being on secondment he remains as a staff of the State Civil Service until the Appellant retires, resigns or converts his appointment from the Civil Service to the State Legislature.

There is no doubt as to how the Appellant got to the service of the 4th Respondent. It was agreed that he was an employee of the State Civil Service headed by the 2nd Respondent. The Appellant also agreed that he was on secondment from the mainstream Civil Service to the 4th Respondent. To be on secondment is to be sent to another department or office of government in order to do or carry out a different job for a short period of time. It is note worthy that the Appellant was not on transfer but on secondment. He was also not seconded to the House of assembly as a Clerk. He was sent to the House, as others, to perform whatever assignment was given to him to carry out until he may be due for another posting by the authority that sent him to the 4th Respondent.

It is also very clear from the records that while working at the 4th Respondent, the Appellant continued to receive his promotions and advancements in the Civil Service. Between 1997 when he was seconded to the 4th Respondent and year 2001, the Appellant received promotions three times, the last one then being as Assistant Director Administration on Grade level 15. And as shown on records, by the time the Appellant was redeployed from the 4th Respondent, he was to report at the Ministry of Justice, Katsina State as Director.

It is therefore certain that as there is no evidence that the Appellant had transferred his service from the mainstream civil service of Katsina State to the 4th Respondent, in particular, after he was appointed as Clerk of the House, he remained a staff of the State Civil Service and is bound by the Civil Service Rules.

The Appellant cannot eat his cake and still have it.

He cannot enjoy his due promotions and advancements in the Civil Service and still claim to be a permanent staff of the 4th Respondent. Indeed, by his action he had chosen to remain a staff of the State Civil Service. The second issue is therefore resolved against the Appellant.

Issue No. 3 is whether the recall of the Plaintiff/Appellant by the 2nd Respondent from the services of the 4th Respondent was not a removal of the Appellant from the office of the Clerk of the 4th Respondent.

As I stated earlier, the procedure to remove a Clerk of 4th Respondent is clearly stated in the Law. As earlier held in this judgment, not being under his control, a staff of the 4th Respondent including the Clerk of the House cannot be removed by the 2nd Respondent. Ordinarily too, not even the 3rd Respondent alone has the power to remove the Clerk. But with the peculiarity of the Appellant’s case, the position is different. His services with the 4th Respondent was still bound by the Civil Service Rules. By the rules, he was to be treated and he was so treated as someone on posting for special duty at the 4th Respondent. As I said earlier, since it was not the Appellant’s case that he was transferred to the 4th Respondent, which could have amounted to or meant the permanent release of the officer from the mainstream civil service to the 4th Respondent; he remained the staff of the State Civil Service of Katsina State bound by its rules.

In otherwords, since the Appellant was not seconded or sent to the 4th Respondent as Clerk of the 4th Respondent, the 2nd Respondent could not have asked that the “Clerk” be released by the 3rd Respondent. Though the recall or redeployment of the Appellant from the 4th Respondent may ordinarily have the implication of removing the Clerk of the House, it was not and was not meant to be a removal of the Clerk pursuant to and envisaged by the Staff Law of the 4th Respondent. It was a recall pursuant to the applicable Civil Service Rules which meant redeployment or posting of the officer back to the mainstream civil service of Katsina State from where he was originally seconded to the 4th Respondent.

The 3rd Issue is therefore resolved against the Appellant.

In the result, and in the final analysis, having failed to prove that the applicable law to his case is the Katsina State House of Assembly, Staff Law, 2001, the Appellant’s case lacks merit. The appeal therefore fails and is accordingly dismissed.

In the circumstance, the decision of Sadiq Abdullahi Mahuta, the Chief Judge in Suit No. KTH/1/2005 delivered on 1st day of November, 2005 is hereby affirmed.

I make no order for costs.

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Other Citations: (2007)LCN/2608(CA)