The Presiding Judge, Calabar Judicial Division of the National Industrial Court, Hon. Justice Sanusi Kado has declared that the employment of Agnes Akomaye, Esq as Chief Magistrate Grade 1 Salary Grade 16 in the Cross River State judiciary with effect from 3rd February 2019 is valid and subsisting.
The Court declared the Cross River State Judicial Service Commission’s purported cancellation of Agnes Akomaye’s appointment as Chief Magistrate 1, grade level 16 and her purported re-appointment as Magistrate Grade ii on grade level 10 with effect from 17th May 2021 as unlawful, null and void and of no effect whatsoever.
The Court ordered the Government of Cross River State, Its Attorney General and the Cross River State Judicial Service Commission to immediately pay Barr. Agnes the sum of N13,461,174.16 (Thirteen Million, Four Hundred and Sixty-One Thousand One Hundred and Seventy Four Naira, Sixteen Kobo), being unpaid arrears of salaries from February 2019 to April 2021 and salary shortfall from May 2021 to March 2022, and henceforth to pay Agnes salary as Chief Magistrate 1, Grade level 16, and the sum of N300,000.00 (Three Hundred Thousand Naira) as cost.
Justice Kado held that Cross River State Government used the State Judicial Service Commission to perpetuate illegality, and the act of cancellation of Barr. Agnes’s appointment and unilaterally appointing her to a lower grade level without any hearing by the Cross River State Judicial Service Commission is ultra vires.
From facts, the claimant- Agnes Akomaye Esq submitted that he was employed by the Cross River State Judicial Service Commission as a Chief Magistrate 1, on salary grade level 16 with effect from 3/2/2019, and was posted to Chief Magistrate Court 6, Akai Efa, Calabar, in Calabar Magisterial district and was not paid her salary for 27 months as at April, 2021.
Barr. Agnes averred that sometime in March 2021, the Cross River State Judicial Service Commission invited her to sign a fresh Acceptance Form for an Offer of Appointment as Magistrate Grade II on Grade Level 10 which she initially refused to sign the Acceptance Form but was eventually compelled to sign the Acceptance Form under duress, that it was from May 2021, the defendants began to pay her a fraction of her monthly salary.
In defence, the defendants- The government of Cross River State, Its Attorney General and the Cross River State Judicial Service Commission maintained that the purported employment exercise conducted in January 2019 by the immediate past judicial service commission, was cancelled by the Cross River State Government, and the new judicial service commission reviewed the cancelled employment exercise and made a special appeal to the 1st defendant, through the 2nd defendant for fresh appointment of Barr. Agnes and 28 others, which appeal the State Government obliged.
The Cross River Government further averred that the fresh appointment of Barr. Agnes to magistrate grade ii on grade level 10 was not under any coercion because the claimant had unfettered option to either accept or reject same.
The defendants stated that the new appointment letter cancelled and supersedes her earlier letter of appointment dated 21/1/2019, and submitted that Barr. Agnes having taken benefit of the contract by taking salaries till date is estopped from refusing to be bound by the same contract, and urged the Court to dismiss the case in its entirety.
In opposition, Barr. Agnes’s counsel submitted that there is no provision in either the Judicial Service Commission Law or the Public Service Rules of Cross River State for a cancellation of a contract of employment such as the one enjoyed by his client, and his client’s appointment cannot be terminated or cancelled at the whims and caprices of the Governor or with a wave of the hand.
In a well-considered judgment, the presiding Judge, Justice Sanusi Kado held that the Cross River State Government does not have the power to interfere with the constitutional exercise of the function of the State Judicial Service Commission, and the Constitution that established the Commission made it to be free from any control or interference in carrying out its constitutional function.
The Court held that there is no evidence adduced by the defendant to show that Barr. Agnes was ever accused of any misconduct or even tried and found guilty to warrant the cancellation of her appointment.
Justice Kado stated that the appointment of Barr. Agnes as Chief Magistrate 1 being one that has support from the constitution and statute cannot be wished away at the whims and caprices of a third party or even by the Cross River State Judicial Service Commission, and the said appointment cannot be tampered with without following due process.
The Court declared that the purported cancellation of the appointment of Barr. Agnes cannot stand having been made on the instruction or direction of the Cross River State Government, and the State Judicial Service Commission in acceding to the request or direction of the State Government to cancel Barr. Agnes’s appointment acted in abdication of its duties.
Read full judgment here