IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JULY 16, 2018
SUIT NO. NICN/LA/351/2013
BETWEEN
Prince Benjamin Saliu Ikani – Claimant
AND
1. Chairman/Chief Executive National Drug Law
Enforcement Agency (NDLEA)
2. National Drug Law Enforcement Agency (NDLEA)
3. Head of The Civil Service of the Federal Republic of Nigeria – Defendants
REPRESENTATION
Mobolaji Akintunde, for the claimant.
Abu Ibrahim, for the 1st and 2nd defendants.
C. O. Ovoke, for the 3rd defendant.
JUDGMENT
1. This is a transferred matter from the Federal High Court. The claimant had filed this suit at the Federal High Court on 29th October 2010 vide an originating summons against four defendants. Upon the transfer of the case to this Court, the Court order parties to file fresh processes in accordance with the then Rules of this Court. The claimant thereafter discontinued the case against the 3rd defendant; and the 3rd defendant was accordingly struck out by order of this Court granted on 8th April 2014 leaving the present three defendants. On 22nd October 2014, the claimant was permitted to correct the name of the 4th (now 3rd) defendant to what we presently have. This necessitated the claimant amending his originating processes. By the amended statement of facts filed on 18th July 2014, the claimant is praying for the following reliefs:
(1) A declaration that the decision of the 1st and 2nd defendants (as communicated in their letter to the claimant dated August 3, 2010) to retire the claimant from the Service of the 2nd defendant Agency, without providing the claimant an opportunity to be heard on the complaints or matters upon which the decision was based, is null and void and of no effect.
(2) A declaration that the decision of the 1st and 2nd defendants to retire the applicant in August 2010 for the sole reason that he had served as Attorney General of Kogi State between 2003 and 2005 before resuming at his duty post as a staff of the 2nd defendant Agency in 2005 is invalid null and void because the claimant had not violated any extant conditions of his employment in any way and had in fact complied with every requirement of the applicable NDLEA Terms and Conditions of Service 2001 particularly Article 3(h) of Part 5 thereof in taking up the appointment and in returning to the service of the 2nd defendant in 2005.
(3) A declaration that the decision of the 3rd defendant to rescind the earlier approval given to the 1st and 2nd defendants for the retirement of the applicant effectively overrides, overrules and nullifies the letter issued by the 1st and 2nd defendants dated August 3, 2010 purporting to retire the applicant.
(4) A declaration that the 1st and 2nd defendants’s letter to the claimant dated August 3, 2010 purporting to retire the claimant from service is ineffective, null and void, being a violation of the claimant’s constitutional right to fair hearing, based on a misapprehension that the claimant had violated the terms of his service, and predicated upon an approval by the 3rd defendant obtained by misrepresentation which approval has been rescinded by the 3rd defendant.
(5) An injunction restraining the defendants by themselves their servants, subordinates and agents from interfering in any way with the employment of the claimant in the service of the Federal Republic of Nigeria and or his performance of his assigned as Commander of the 2nd defendant in Yobe State of Nigeria or otherwise obstructing him from continuing in his employment as and enjoying the benefits of a staff of the 2nd defendant.
(6) An injunction compelling the defendants to restore all the appurtenances and applicable benefits of the claimant’s office and employment as a State Commander of the 2nd defendant including accrued promotions and proper placement within 7 days of the date of this order.
2. In response, the 1st and 2nd defendants filed on 5th August 2014 their amended statement of defence, amended list of witness(es), amended written statement on oath of the witness, amended list of documents and copies of the documents. The 3rd defendant on 27th October 2014 filed only the 3rd defendant’s amended statement of defence.
3. At the trial, the claimant testified on his own behalf as CW and tendered Exhibits C1 to C11, Peso Ezekiel Ngale, Deputy Director, Admin of the 2nd defendant, testified as 1st and 2nd defendants’ witness and tendered Exhibits D1 to D13. The 3rd defendant did not call any witness but tendered Exhibits HCF1 to HCF4 from the Bar. At the close of trial, parties filed and served their respective final written addresses. The 3rd defendant’s final written address was filed on 8th June 2017. The 1st and 2nd defendants’ final written address was filed on 20th September 2017. The claimant’s final written address was filed on 19th February 2018. None of the defendants filed any reply on points of law.
THE CASE OF THE CLAIMANT
4. To the claimant, he was employed by into the service of the 2nd defendant at its formation in 1990 as a legal officer (Exhibit C1), which appointment was subsequently confirmed in 1993 (Exhibit C2) and he had series of promotions including the one of 7th August 2007 to the position of Assistant Commander of Narcotics (ACN) – Exhibit C3. In 2003, he was appointed as Attorney General (AG) and Commissioner for Justice, Kogi State (Exhibit C4). That pursuant to Article 3(h) of Part 5 of the NGLEA Regulations (Terms and Conditions of Service) at page 49 (Exhibit C5), he applied through a letter of 31st July 2003 (Exhibit C6) for leave of absence in order to take up the appointment as AG, Kogi State. By a letter of 13th August 2003 (Exhibit C7), the 1st and 2nd defendants congratulated the claimant and approved the leave of absence for the duration specified in the terms and conditions of the claimant’s employment. At the end of his service as Commissioner in 2005, he returned to the 2nd defendant in compliance with the regulations, was re-absorbed and posted to Kebbi State as State Commander. That his promotion to ACN in 2007 as done after his resumption from leave of absence, within which period he even served as Director, Office of the Chairman/Chief Executive of the Agency and State Commander in Ekiti State.
5. That his problems with the Agency started after he was appointed in 2006 as a Member, Secretary and head of the Secretariat of the seven man Presidential Committee for the Reform of the NDLEA headed by Hon. Justice Gilbert Obanya (Rtd) – Exhibit C8. That this Committee submitted its report in 2007 and the leadership of the 2nd defendant after considering the report accused the claimant of not protecting them. That this led to several acts of persecution by the agency including the decision to revisit the leave of absence granted to him in 2003. That it was pursuant to this persecution that the leadership of the 2nd defendant wrote to the 3rd defendant in 2005 for approval to terminate his employment after serving as AG, Kogi State, which request for approval did not reveal that the claimant had applied and obtained leave of absence pursuant to Article 3(h) of Exhibit C5. Accordingly, that the approval, if any was given by the 3rd defendant, for the 1st and 2nd defendants to terminate the employment of the claimant must have thus been given in error. That when he learnt of the 1st defendant’s attempt to forcefully retire him, he caused his lawyer to write protesting the premature retirement (Exhibit C10). By Exhibit C9, however, the 1st and 2nd defendants nevertheless retired him form service. The claimant went on that the 3rd defendant recanted and wrote to the 1st and 2nd defendants directing that they retract and withdraw from the steps taken to retire the claimant (Exhibit C11). That consequent upon this, he made attempts to resume his duties but was thwarted by the 1st defendant upon whose orders the claimant was stripped of every appurtenance and benefit of his office, hence this action. To the claimant given the facts and circumstances of this case, the 1st and 2nd defendants are estopped form resiling from the approval they gave him to proceed on leave of absence.
THE CASE OF THE 1ST AND 2ND DEFENDANTS
6. To the 1st and 2nd defendants, the claimant is a public servant and so his employment is regulated by his letter of appointment, Public Service Rules, Government Extant Circulars and such regulations that the Federal Government or the 2nd defendant may make from time to time. That the provisions of the NDLEA Terms and Conditions of Service made in 2001 (Exhibit D1/C5) especially Article 3(h) of Part V is all times subject to the Public Service Rules, other regulations and extant circulars of Government. That in 2002, the Federal Government issued a circular of 28th June 2002 (Exhibit D7) reiterating and reinforcing as well as clarifying the earlier circulars of 1979 and 1980 on the subject of acceptance of political appointments by career public officers (Exhibits D5 and D6). To the 1st and 2nd defendants, Exhibit D7 merely emphasized the necessity for all public servants to respect the provisions of sections 66(1)(f), 107(1)(f), 137(1)(g), 142(2), 147(5), 182(1)(g), 187(2) and 192(4) of the 1999 Constitution that disqualify Civil and Public Servants from taking police appointments in Nigeria. hat this was the state of the rules governing the employment of the claimant when in 2003 he applied for leave of absence to be a Commissioner in Kogi State. That the letter of approval written by the 2nd defendant to the claimant (Exhibit D2/C7) gave the claimant an open ended approval in the following terms: “The duration of your leave of absence is as specified by the Terms and Conditions of your appointment”. That the claimant left to serve as Commissioner in these circumstances. That upon his return to the Agency, the 2nd defendant sought and obtained directive to retire the claimant in line with extant circulars where then the claimant brought this action claiming unlawful retirement, referring to Exhibits D8 and D9.
THE CASE OF THE 3RD DEFENDANT
7. To the 3rd defendant, when the 1st and 2nd defendants wrote to the 3rd defendant (Exhibit HCSF1), the 3rd defendant was aware of the existence of the circulars of 4th March 1980 and 28th June 2002 by which the Federal Government of Nigeria (FGN) stopped the practice of career civl servants going for political appointments and returning later to the career civil service. That since the 1st and 2nd defendants did not disclose in its letter to the 3rd defendant the fact that the Conditions of Service of the 2nd defendant makes provision for officers to obtain leave of absence before proceeding on political appointments, the 3rd defendant wrote to the 1st defendant and advised both the 1st and 2nd defendants to retire the claimant as his return to the career civil service after serving as a political appointee contravened the circulars of 4th March 1980 and 28th June 2002 (Exhibit HSCF2). That despite the knowledge of the circulars of 4th March 1980 and 28th June 2002, the 1st and 2nd defendants deleted to ignore the Government position by retaining Article 3(h) of Part 5, page 49 of its Conditions of Service for its employee including the claimant that all its confirmed officers offered political appointments could apply for leave of absence to take up the appointment and to return to their career offices. That it was when the claimant’s counsel wrote to the 3rd defendant requesting for intervention (Exhibit HCSF3) that the 3rd defendant became aware of the fact that the Conditions of Service of the 2nd defendant allowed officers offered political appointments to obtain leave of absence before taking up such political appointments, and that the claimant did obtain the leave of absence. The 3rd defendant went on that in view of the disclosure of the facts of this matter, it wrote to the 1st defendant and advised that the claimant should not be terminated or retired and to ensure that the Conditions of Service of the 1st and 2nd defendants are aligned with the current Government Regulations and Circulars and to submit same for ratification of the 3rd defendant in accordance with Rule 160401 of the Public Service Rules (Exhibit HCSF4). That considering the circumstances and facts of this matter, the 3rd defendant has done the needful by advising the 1st and 2nd defendants appropriately; as such tis case as presently constituted does not disclose any reasonable cause of action against the 3rd defendant as required by law, thus urging the Court to strike out its name.
THE SUBMISSIONS OF THE 3RD DEFENDANT
8. The 3rd defendant submitted one issue for determination, namely: whether the claimant’s suit as presently constituted discloses any reasonable cause of action against the 3rd defendant to make the 3rd defendant a necessary party to this suit. To the 3rd defendant, the claimant’s case has not disclosed any reasonable cause of action against it as required by law in terms of a wrongful act by the 3rd defendant and consequential damage, citing Alhaji Aminu Ibrahim v. Felix Osim [1988] 3 NWLR (Pt. 82) 257 at 260, Dim Chukwu Emeka Odumegwu Ojukwu v. Alhaji Musa Yar’Adua & 4 ors [2009] 28 NSCQR (Pt. 1) 492 at 565 and AG, Federation & 2 ors v. Alhaji Atiku Abubakar & 3 ors [2007] 10 NWLR (Pt. 1041) 1 at 121. That no where in the claimant’s pleadings is shown any wrongful act of the 3rd defendant or any damage arising from the wrongful act of the 3rd defendant. That there is, therefore, no controversy or love issues between the claimant and the 3rd defendant in the smatter to warrant the presence of the 3rd defendant in this matter. That Exhibit HCSF2 may seem to have occasioned a cause of action but this was cured by Exhibit HCSF4. That the law is that parties are bound by heir pleadings, citing Chief O. N. Nsirim v. E. A. Nsirim [1990] 3 NWLR (Pt. 138) 285 at 299. That from the claimant’s pleadings, there is no allegation raised against the 3rd defendant; and since the 1st and 2nd defendants are legal entities, this action can proceed against them without the necessity of making the 3rd defendant a party, referring to Lagos State Bulk Purchase Corporation v. Purification Techniques (Nig) Ltd [2012] 52 NSCQR 274 at 304 – 305. The 3rd defendant accordingly red the Court to strike out the name of the 3rd defendant rom this suit.
THE SUBMISSIONS OF THE 1ST AND 2ND DEFENDANTS
9. The 1st and 2nd defendants submitted five issues for determination, namely:
(1) Whether the retirement of the claimant in accordance with the extant Circular No. CND/100/11/608 of 28th June 2002 and the others preceding it was wrongful and in beach of the complainant’s conditions of service.
(2) Is the letter…dated 23rd August 2010 rescinding the earlier one of 22nd April 2010 which approved the claimant’s retirement of any effect in view of the clear language of the extant Circulars and the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?
(3) Can the terms and conditions of service of the 2nd defendant (NDLEA) be superior to or override extant Circulars from the Office of Head of Service of the Federation?
(4) Can a person or authority waive or interfere with a rule of public policy or plead estoppel against the assertion of the supremacy of the Constitution?
(5) Whether then claimant is entitled to any of the reliefs sought in the complaint.
10. On issue (1), the 1st and 2nd defendants submitted that the retirement of the claimant was not wrongful and not in breach of the claimant’s conditions of service. That the claimant in virtue of sections 4(4) and 5(7) of the NDLEA Act Cap N30 LFN 2004 as well as categorization of those in the Public Service of the Federation under section 318(1)(h) of the 1999 Constitution is a public officer and as such Rule 01001 of the Federal Government Public Service Rules applies to the claimant. Accordingly, that the Public Service Rules (PSR) take precedence to the terms and conditions of service of Ministries, Departments and Agencies. That Article 3(h) of Chapter V of the 2nd defendant’s terms and conditions of service does not relate to taking up political appointments but to such national assignments as committee work and certain treasure appointments. That even if Article 3(h) covers political appointments, it must be read along with the provisions of the public service extant circular on the subject. To the 1st and 2nd defendants, the claimant cannot claim to be ignorant of the contents of the circular of 28th June 2002 given Rule 01001 of the PSR; and that even if he was, section 192(4) of the 1999 Constitution is succinct and clear on the issue. That having accepted an open-ended leave of absence, the claimant is deemed to have withdrawn, resigned or retired from the service as the case may be on the day prior to his resumption of duty given that an irrebuttable presumption of resignation, withdrawal of service or retirement is imputed to the claimant. That this expanse why the letter of approval of the 3rd defendant dated 22nd April 2010 requested the 2nd defendant to recover all the salaries and allowances paid to the claimant from October 2005 to the date of his retirement. That none of the parties in this case including the 3rd defendant has discretion on the implementation of the circular and provisions of the Constitution once a career public officer has decided to take up political appointment; and so, the retirement of the claimant was not wrongful.
11. The 1st and 2nd defendants went on the issue of a public servant’s involvement in politics is a constitutional one which overrides all circulars and terms and conditions of service in any Government Agency or Parastatal, citing sections 40, and 45 of the 1999 Constitution. The 1st and 2nd defendants then submitted that in derogation of the right to form and belong to any political party by public or civil servants, the PSR forbid civil or public servants from being members of any registered political party. That this is necessary in order to immune the civil or public service from partisan politics and impartiality. That because the clamant’s terms and conditions of service is contrary to the Constitution, the letter of the 3rd defendant dated 23rd August 2010 cannot stand or be of any effect, citing Adeyemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 at 7 – 8. Also referred to the Court are sections 107(1)(f) and 192(4) of the 1999 Constitution as well as Omowaiye v. AG, Ekiti State [2011] All FWLR (Pt. 588) 876 CA. The 1st and 2nd defendant then submitted that the claimant has no place in the public service any longer and his retirement by the 1st defendant based on the approvals in Exhibits D9 and D11 were proper, urging the Court to resolve issue (1) in their favour and dismiss the claimant’s case.
12. Issue (2) deals with whether the 3rd defendant’s letter of 23rd August 2010 rescinding the earlier one of 22nd April 2010 which approved the claimant’s retirement is of any effect. To the 2nd and 3rd defendants, the right interpretation was given in the letter of 22nd April 2010, not the 23rd August 2910 letter given that constitutional prescription cannot be waived. The 1st and 2nd defendants went on that when the 3rd defendant issued the letter of 22nd April 2010, no facts were concealed from the 3rd defendant when the letter of 1st March 2010 was written seeking guidance on the claimant’s issue. To the 1st and 2nd defendants that their letter to the 3rd defendant talked of open-ended leave of absence, the fact of leave of absence was not hidden from the 3rd defendant. That being the case, that Exhibit D11 dated 6th August 2010 wherein the Attorney General of the Federation (AGF) appropriately interpreted the true state of the law must be preferred. That the letter of 3rd August 2010 cannot override or nullify the letter of 22nd April 2010 in the face of Exhibit D11 dated 6th August 2010, which is a confirmatory advice from the AGF on the interpretation of the extant circulars. The 1st and 2nd defendants then urged the Court to resolve issue (2) in their favour.
13. Issue (3) relates to the question whether the NDLEA conditions of service can override extant circulars. To the 1st and 2nd defendants, the 3rd defendant’s letter of 23rd August 2010 is to the effect that a provision in the NDLEA conditions of service is superior to or can overrule an extant circular from the 3rd defendant. That this does not accord with logic and law. That all circulars from the 3rd defendant are to be read into the terms and conditions of the 2nd defendant; and where there is a conflict between the two, the extant circular supersedes, urging the Court to so hold and resolve issue (3) in their favour.
14. Issue (4) deals with whether a rule of public policy can be waived or estoppel can be pleaded against the supremacy of the Constitution. To the 1st and 2nd defendants, despite that the claimant was reabsorbed after his leave of absence, it cannot be that thereby that the 1st and 2nd defendants can in law waive or interfere with a rule of public policy, or would the claimant be allowed to plead estoppel against the assertion of the supremacy of the Constitution. That while an individual can waive a right which inures to his benefit, such an individual cannot waive a public right or rule of public policy, citing AG, Bendel State v. AGF & ors [1981] NSCC 314 at 318. The 1st and 2nd defendants then urged the Court too uphold the supremacy of the Constitution and to discountenance any suggestion that public policy can be waived in terms of the issue of public officers taking up political appointments.
15. Issue (5) is whether the claimant is entitled to any relief in tis suit. The 1st and 2nd defendants answered in the negative given the submissions they made in terms of their issues (1) to (4).
16. In reaction to the 3rd defendant, the 1st and 2nd defendants submitted that the 3rd defendant despite filing its defence processes, did not call any witness or adopt its documents frontloaded. That the non-calling of a witness by the 3rd defendant means that it abandoned its pleadings; and since pleadings is not evidence, the pleadings remain unsubstantiated and abandoned, citing UBN Plc v. Astra Builders (WA) Ltd [2010] 5 NWLR (Pt. 1186) 1, Skye Bank Plc v. Akinpelu [2010] 9 NWLR (Pt. 1198) 179, Aregbesola v. Oyinlola [2011] 9 NWLR (Pt. 1253) 458 and Fairline Pharmaceutical Industries Ltd & anor v. Trust Adjusters Nig Ltd [2012] LPELR-20860(CA). Also that a witness statement on oath becomes evidence only when adopted, citing Onyenwe & anor v. Anaejionu [2014] LPELR-22495(CA). The 1st and 2nd defendants concluded by urging the Court to dismiss the claimant’s suit with substantial cost.
THE SUBMISSIONS OF THE CLAIMANT
17. The claimant submitted a sole issue for determination, namely: whether having regard to the state of evidence before the Court the claimant is entitled to the reliefs sought by him. To the claimant, the failure of the 1st and 2nd defendants to hear him on the complaints made against him before taking the decision video the letter of 3rd August 2010 to retire him is a violation of the claimant’s constitutional right to fair hearing and feeders the decision a nullity. That the 1st and 2nd defendants’ defence was that the process of retiring the claimant was kick-started by petitions against him by persons kicking against the claimant’s reabsorption into the Agency, referring to Exhibits D8 and D11. The claimant went on that he was never informed of any pending petition against him or invited to state his own side of the story in respect of the matters that led to his retirement. That his retirement was a quasi-judicial act and he ought to have been given a hearing before he was retired, citing section 36(1) of the 1999 Constitution, JSC, Cross River State v. Young [2013] 11 NWLR (Pt. 1364) 1 at 35 – 36, C in C of Armed Forces v. Public Service Commission Mid-West & anor Ex Parte M. O. Kubeinje [1974] NSCC (Vol. 9) 509 at 531, Ikenna Amechi Esq & anor v. Mr Egwuoyibo Okoye [2008] LPELR-5160(CA), Olatunbosun v. NISER Council [1988] 3 NWLR (Pt. 80) 25 at 52, Obot v. CBN [1993] 8 NWLR (Pt. 310) 140 and Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378 at 414. That having earlier granted him leave of absence, the 1st and 2nd defendants ought to have informed him of any steps or petitions that tend to challenge their earlier decision to grant him leave of absence. That this failure to give the opportunity to be heard means that the decision to retire him is null and void, citing Ikenna Amechi Esq & anor v. Mr Egwuoyibo Okoye, Orugbo v. Una [2002] LPELR-2778(SC) and Saleh v. Monguno [2003] NWLR (Pt. 801) 221 at 246. The clamant then urged the Court to declare his retirement null and void.
18. The claimant continued that he did not violate any extant conditions of employment and or PSR to warrant his compulsory retirement. The claimant then reiterated how he applied and obtained leave of absence before proceeding to serve as Commissioner in Kogi State. That the PSR recognize the validity of terms contained in each public servant’s contract of employment, citing Rule 010101 of the PSR (Exhibit D13). hat it is not in doubt that the 3rd defendant’s circular of 28th June 2002 is in conflict with Article 3(h) of the NDLEA terms and conditions of service (Exhibit C5), which empowers the claimant to seek and obtain leave of absence from the 2nd defends t before proceeding on national assignment. That going by Rule 010101 of the PSR, the specific provision as to leave of absence in Article 3(h) of Exhibit C5 prevails over the extant circulars of the 3rd defendant, which seem to deem the claimant as having retired by reason of taking up appointment as a Commissioner in Kogi State, citing the Court of Appeal decision of FJSC v. Thomas [2013] 17 NWLR (Pt. 1384) 503 at 548 upholding the specific provisions of the FJSC Rules over the PSR. That the submission of the 1st and 2nd defendant that the PSR is superior to the terms and conditions of service of the claimant is mischievous and a deliberate attempt at misleading the Court given Rule 010101 of the PSR, urging the Court to so hold.
19. The claimant continued that in any event, a close examination of the circular of 28th June 2002 would show that civil servants appointed as personal staff of political office holders can apply to the Head of Service for leave of absence if they want to return to the civil service at the end of their assignment. That the circular of 28th June 2002 is in consonance with section 208(2)(d) and (5) of the 1999 Constitution. That having sought and obtained leave of absence, he is not in breach of the terms and conditions of his employment and or the PSR.
20. The claimant proceeded to distinguish Dr Gabriel O. Omowaiye v. AG of Ekiti State & anor (supra) relied on by the 1st and 2nd defendants. To the claimant, this case is distinguishable from his case in four respects:
(1) In Omowaiye, the appellant did not apply for leave of absence until he had assumed office as Commissioner of Health and his application for leave of absence was subsequently refused; but in the claimant’s case he sough and obtained leave of absence before he proceeded to serve as Commissioner.
(2) In Omowaiye, the appellant was not re-absorbed into the public service when he was removed as Commissioner and sought to resume his position as Chief Medical Director; but in thence at hand, the claimant returned to his employment and was re-absorbed into the service. That the Court of Appeal did not accordingly consider the effect of re-absorption in Omowaiye.
(3) In Omowaiye, the appellant’s contract did not provide that he could apply for leave of absence unlike the claimant’s case where it did.
(4) In Omowaiye, the issue of fair hearing did not arise unlike thecae of the claimant where it did.
21. The claimant accordingly urged the Court not to apply Omowaiye; and that the provisions of sections 106, 107(1)(f) and 192(4) of the 1999 Constitution are not related to or intended to govern a master/servant relationship or statutory employment as that of the claimant. That the provisions were made to determine the conditions that should be met by a public servant who is seeking to be elected into political office. To the claimant the failure of a public servant to resign or retire from the public service can only be a ground for his removal from an elective office or for him to be relieved of an appointment and cannot be extended to deem such public officer to have resigned his employment.
22. The claimant went on that the 1st and 2nd defendants are estopped from asserting that the claimant is deemed to have retired from the employment of the 2nd defendant given the facts of this case as already recounted. That the fact that the claimant was re-absorbed after his leave of absence and promoted to the rank of Assistant Commander means that the 1st and 2nd defendants are estopped from asserting that the claimant is deemed to have resigned his employment upon taking the appointment as Commissioner. That the law is that a party is estopped form resiling from a position he had earlier adopted and on the basis of which another person has relied on to change his position, citing Okonkwo & ors v. Kpajie & ors [1992] LPELR-2483(SC) and SDV Nig Ltd v. Ojo & anor [20167] LPELR-40323(CA). That the argument of the 1st and 2nd defendants as to public policy is misconceived as this Court cannot base its decision on public policy in preference to the express provision of the NDLEA Regulations, citing Edet v. Chagrin [2008] 2 NWLR (Pt. 1070) 85 CA at 105 and Sonnar (Nig) Ltd & amor v. Partenreedri M. S. Nordwind Owners of the Ship M. V. Nordwind & anor [1987] LPELR-3494(SC), which both caution against basing decisions mainly on public policy to avoid creating uncertainty in the law. Also that the argument as to constitutional supremacy cannot apply, urging the Court to reject the invitation to hold that the 1st and 2nd defendants are not bound by the NDLEA Regulations on the ground of public policy.
23. The claimant then submitted that the 1st and 2nd defendants are bound by the directives of the 3rd defendant as contained in the letter of 23rd August 2010. That it is not open to them to elect which directive to comply with as all Heads of Ministries and Departments are under the control of the Head of Service.
24. The claimant concluded by addressing certain issues raised by the 1st and 2nd defendants, which the claimant said were erroneous submissions. First, that the argument that Article 3(h) of Chapter V of the NDLEA terms and conditions of service does not relate to taking up of political appointment but national assignments overlooks the fact that what amounts to national assignment is not closed and is wide as to accommodate political appointments. Secondly, on the submission that the evidence of the 3rd defendant should be discountenanced on the ground that no witness was called to adopt it, the claimant submitted that the record of the Court will show that the 3rd defendant’s counsel had tendered the deposition on oath of the 3rd defendant’s witness and the documents to be relied on in this suit from the Bar and both were adopted as evidence and marked as exhibits in compliance with the Rules of this Court without any objection from the 1st and 2nd defendants’ counsel who was present in Court, urging the Court to discountenance the 1st and 2nd defendants’ submissions in that regard. In conclusion, the claimant urged that all his relief be granted.
COURT’S DECISION
25. I must right away dispose of the case of the 3rd defendant that this suit is incompetent as against it because it does not disclose any reasonable cause of action against it. A look at reliefs (3), (5) and (6) will show that they are reliefs against the 3rd defendant. Relief (3) is specific against the 3rd defendant, while reliefs (5) and (6) are against all the defendants. Naturally, only a consideration of the merit of the case will reveal whether these reliefs have been proved against the 3rd defendant or not. In this wise, I hold that this suit is competent against the 3rd defendant.
26. The determination of this case requires a restatement of the sequence of events in terms of the facts of this case; as I find them. Some of the documents tendered in evidence by the parties coincide. The claimant as an employee of the 1st and 2nd defendants had been nominated for appointment as Honourable Commissioner in Kogi State. By a letter of 31st July 2003 (Exhibit D1/C6), he applied to the 1st defendant for leave of absence in order to take up the appointment. The final appointment letter itself is Exhibit C4. By Exhibit D2/C7 dated 13th August 2003, the 1st defendant approved the leave of absence, the duration of which is to be as specified in the terms and conditions of the claimant’s appointment. The 1st defendant even congratulated the claimant on his “well-deserved appointment”. By Article 3(h) under Part V of Exhibit C5/D3 (the terms and conditions of service of the 2nd defendant as applicable to the claimant):
If any officer whose appointment has been confirmed and has served the Agency for at least two (2) years, is called for national service either at the Federal, State or Local Government level, may, on application, be granted leave of absence by the Agency. An officer on leave of absence shall not be eligible for regular promotion.
I need to state right away that an appointment as Honourable Commissioner as was the case of the claimant is a call to national service in terms of Article 3(h) of Exhibit C5/D3. Accordingly, the argument of the 1st and 2nd defendants that Article 3(h) does not relate to taking up political appointments but to such national assignments as committee work and certain tenure appointments is curious.
27. Based on the approval of the leave of absence, the claimant proceeded to take up the appointment as Commissioner in Kogi State. He served out this appointment, returned to the 2nd defendant in 2005 and was re-absorbed into the service. The evidence before the Court is that the claimant was even promoted (Exhibit C3 dated 7th August 2007), posted and assigned responsibilities by the 1st and 2nd defendants. The Federal Government still found the claimant worthy of an appointment in 2006 as a Member, Secretary and head of the Secretariat of the seven-man Presidential Committee for the Reform of the NDLEA headed by Hon. Justice Gilbert Obanya (Rtd) – Exhibit C8 dated 20th October 2006. By Exhibit D8/HCSF1 dated 1st March 2010 i.e. 5 years after the claimant resumed from the leave of absence granted him by the 1st and 2nd defendants, the 1st defendant wrote to the 3rd defendant appealing for guidance on the implementation of extant circulars on acceptance of political appointments by career public servants using the claimant as the case in point. In Exhibit D8/HCSF1, the 1st defendant alluded to “written and oral petitions” on the claimant in terms of his re-absorption into the service and “the continued hue and cry by officers alleging discriminatory application of administrative guidelines and circulars to the detriment of the service and career officers”. I must state that other than Exhibit D8 itself, there is no shred of evidence before the Court as to these “written and oral petitions” and “the continued hue and cry by officers”.
28. The 3rd defendant, by a letter dated 22nd April 2010 (Exhibit D9/HCSF2) informed the 1st defendant that on the claimant’s acceptance of political appointment, he is assumed to have resigned or retired from the service as the case may be a day prior to assumption of duty in accordance with the circulars of 20th November 1979, 4th March 1980 and 28th June 2002. That the return of the claimant to the Agency is a violation of these circulars. The 1st defendant was then advised to stop the claimant’s salary and recover even the salaries already paid to him or the 1st defendant will be surcharged. Not satisfied, the 1st defendant vide a letter of 20th July 2010 (Exhibit D10) wrote to the Honourable Attorney General of the Federation (HAGF) also for guidance on the implementation of extant circulars on acceptance of political appointment by career public servants.
29. There are, however, noticeable differences in the appeal for guidance as per Exhibit D10 from that in Exhibit D8/HCSF1. In Exhibit D10, the 1st defendant came to the conclusion that the claimant acted in contravention of the provisions of the extant circulars to when he applied for leave of absence “to take up political appointment”. This is not the case in Exhibit D8/HCSF1. Secondly, the “written and oral petitions” and “the continued hue and cry by officers” the 1st defendant alluded to in Exhibit D8/HCSF1 is not repeated in Exhibit D10. Thirdly, the 1st defendant in Exhibit D8/HCSF1 made spirited attempts to exonerate both the 1st and 2nd defendants for granting the leave of absence to the claimant explaining that they could do nothing and did not want to rock the boat because soon after the claimant resumed from the leave of absence he was appointed to serve as Secretary to the Committee on the Reform of the NDLEA without the Agency being consulted. In Exhibit D10, the 1st defendant was silent of this explanation; may be because it would have sounded as a complaint against an action taken by the HAGF himself. What I find in all of this is that information was hoarded when the appeal for guidance was sought. This explains why the claimant argued that all through, the 1st and 2nd defendants misled especially the 3rd defendant in seeking for guidance. The 3rd defendant itself in its letter of 23rd August 2010 (Exhibit D12/C11/HCSF4) talked of being informed that the 1st and 2nd defendants granted leave of absence to the claimant to take up appointment with Kogi State Government based on the provisions of the NDLEA conditions of service. Exhibit D8 only talked of the claimant being “granted an open-ended leave of absence by my predecessor” without indicating whatsoever that the grant was in accordance with Article 3(h) of Exhibit C5/D3. There is no gainsaying that this amounts to hoarding information just as a comparison of Exhibit D8/HCSF1 with Exhibit D10 shows as I already highlighted.
30. The 1st defendant did not wait for the reaction of the HAGF to his letter of 20th July 2010 (Exhibit D10) when vide a letter of 3rd August 2010 (Exhibit C9), he retired the claimant from service. The HAGF, however, replied to Exhibit D10 vide Exhibit D11 dated 6th August 2010 wherein the HAGF gave “approval that the relevant Circulars be implemented accordingly”. However, the HAGF held that since the claimant “had applied and was given formal approval, he should not be made to refund any money paid to him by way of emoluments”. Counsel for the claimant had vide a letter of 18th May 2010 (Exhibit C10/HCSF3) written to the 3rd defendant intimating a threat to the employment of the claimant. It was in response to Exhibit C10 that the 3rd defendant wrote Exhibit D12/C11/HCSF4 dated 23rd August 2010 to the 1st defendant advising him not to terminate or retire the claimant based on his acceptance of political appointment as earlier directed in the latter of 22nd April 2010 (Exhibit D9); and also indicating that Exhibit D12/C11/HCSF4 supersedes Exhibit D9/HCSF2. Two things come to mind here: the HAGF was categorical that the claimant should not refund any money paid to him by way of emoluments; and the 3rd defendant reversed itself and advised the 1st defendant not to terminate or retire the claimant. Of course, the 1st and 2nd defendants did not heed to this advice, hence the instant case. This is the state of the facts as I find. The claimant in paragraph 2.2.18 of his final written address talked of the 2nd defendant writing to the 3rd defendant in 2005 for approval to terminate his employment after serving as Attorney General of Kogi State. There is no such letter before the Court.
31. It is curious that the 1st and 2nd defendants who sought the advice of the 3rd defendant and the HAGF in the matter of the claimant would be unprepared to heed to their advice. The manner in which the flow of information played out as between Exhibits D8/HCSF1 and D10 calls for worry that beyond the desire to keep to the tenets of the 1999 Constitution there is nothing else that influenced the retirement of the claimant by the 1st and 2nd defendants. The claimant stated that his problems started when he was appointed as Secretary to the Committee on the Reform of the NDLEA. This is founded because the 1st defendant in Exhibit D8/HCSF1 complained that this appointment was without any consultation with the 1st defendant. Even the submission of counsel to the 1st and 2nd defendants to the effect that the 2nd defendant, being a security organization, cannot afford to harbor persons like the claimant who are tainted by partisan politics, suggests that the apprehension of the claimant is founded.
32. Part of the claimant’s case especially in terms of his relief (1) is that he was retired without being heard especially as the retirement was said to be a product of petitions against him; as such section 36(1) of the 1999 Constitution was breached. The flip side as regards this submission is that it runs foul of the recent decision of the Supreme Court in Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors [2017] 14 NWLR (Pt. 1577) 410. In that case, the Supreme Court, relying on Bakare v. LSCSC [1992] 8 NWLR (Pt. 266) 641 at 699 – 700 and Ekunola v. CBN [2013] 15 NWLR (Pt. 1377) 224 at 262 – 263, held that breach of a fundamental right under section 36(1) of the Constitution arises only where the denial of fair hearing has been charged against a Court or tribunal established by law and not before a domestic or standing ad-hoc tribunal raised departmentally by parties. In other words, there would be no case of infringement of the right to fair hearing under section 36(1) of the 1999 Constitution when the decision alleged to have violated one’s constitutional right to fair hearing is that of a non-judicial body. The NDLEA is a non-judicial body. The reliance on section 36(1) of the 1999 Constitution by the claimant would accordingly be uncalled for since the disciplinary process the claimant complains of in the instant case is one composed of a body that is not a Court or Tribunal established by law as to enable the claimant assert that the defendants did not comply with section 36(1) of the 1999 Constitution. Because the claimant is relying on section 36(1) of the 1999 Constitution he cannot succeed in his relief (1) given the authority of Rev. Prof. Paul Emeka v. Rev. Dr. Chidi Okoroafor & ors. Relief (1) accordingly fails and is dismissed.
33. I need to clarify some of the submissions made by the claimant. The claimant’s reliance on section 208(5) of the 1999 Constitution is uncalled for. The claimant was not appointed as Secretary to the Government of Kogi State; nor was he appointed into any office on the personal staff of the Governor of Kogi State. So, the argument that the circular of 28th June 2002 was made with section 208(5) in mind and so governs the claimant’s conditions of service as a public servant and expressly permits the claimant to return to the civil service upon completion of his assignment as Commissioner cannot stand given Dr Gabriel O. Omowaiye v. AG of Ekiti State & anor [2010] LPELR-4779(CA); [2011] All FWLR (Pt. 588) 876, which specifically denounced a similar argument holding that there is a specific provision for appointment into the office of Commissioner under section 192(4) of the 1999 Constitution and so section 208(5) cannot apply to the position of Commissioner. The further argument of the claimant, citing Orji v. PDP [2009] 14 NWLR (Pt. 1161) 310 at 396, which to the claimant held that a Commissioner is a personal staff of the Governor and holds his office at the pleasure of the Governor, is misleading because no where in the quote given by the claimant himself did Orji v. PDP hold that a Commissioner is a personal staff of the Governor. Holding office at the pleasure of the Governor is not the same thing as, and cannot translate to, being a personal staff of the Governor. If a Commissioner were a personal staff of the Governor, there would have been no need for section 192(4) of the 1999 Constitution, a point evident in Dr Gabriel O. Omowaiye v. AG of Ekiti State & anor. Equally inapplicable given Omowaiye is the association of section 192(4) with sections 106 and 107(1)(f), all of the 1999 Constitution, and the emphasis on the words “qualification” and “disqualification” as conditions precedent that must be met before a person can contest an election.
34. The claimant’s submission at paragraphs 4.2.34 and 4.2.35 to the effect that sections 106, 107(1)(f) and 192(4) of the 1999 Constitution would only have made him unfit to be a Commissioner having not resigned from the public service at the time he was appointed as Commissioner; and that the sections cannot be interpreted to affect his employment when they deal with his qualification for appointment to be appointed as a Commissioner and not in his capacity to continue his employment as a civil servant having previously held the office of a Commissioner, is as confusing as it can be and is beyond comprehension.
35. The submission of the claimant that the 3rd defendant’s witness statement on oath was tendered and marked as evidence is false and misleading. At the Court’s sitting of 17th May 2017, only the 3rd defendant’s frontloaded documents were tendered from the Bar and were marked as Exhibits HCSF 1 to HCSF4, copies of documents already tendered in evidence by the claimant and the 1st and 2nd defendants. No sworn deposition was tendered and marked as evidence.
36. The crux of the 1st and 2nd defendants’ argument against the claimant’s case is Dr Gabriel O. Omowaiye v. AG of Ekiti State & anor [2010] LPELR-4779(CA); [2011] All FWLR (Pt. 588) 876 where sections 107(1)(f) and 192(4) of the 1999 Constitution were interpreted by the Court of Appeal. But we cannot understand the context of the interpretation of these sections unless the exact facts of the case itself are appreciated; for in there lies the distinction between that case and the instant case. His Lordship Nweze, JCA (now JSC) who delivered the leading judgment gave the facts of the case in the opening paragraphs of the judgment in these words:
…the appellant herein, who had almost risen to the apogee of his career in the Civil Service of the Government of Ekiti State, accepted an offer of appointment as a Commissioner; an appointment which was not only short-lived but which, by some cruel irony, became an albatross around his glorious career: a career that spanned two decades.
Before the appellant’s appointment as a Commissioner for Health in the administration of the erstwhile Governor of Ekiti State, Dr. Ayodele Fayose, he was the Chief Medical Officer in the service of the State Government, a relatively obscure, although secured, position. He opted out of his secured career position for the glamour of the position of a Commissioner: a Commissioner whose tenure was unfortunately, truncated by the State of Emergency which was proclaimed in the State on October 19, 2006.
Sequel to the said events of October 19, 2006, he thought he could resume at his former duty post as Chief Medical Officer. Pronto, he communicated his intention to get back to duty to the State Health Management Board [hereinafter referred to as the Board]. In reaction, the Board intimated him that by accepting the offer of appointment aforesaid, he had taken a political appointment; hence his resumption of duty was subject to approval by the office of Establishment. Worse still, he was, subsequently, informed that his application for leave of absence was not approved: rather, he was deemed to have retired from the Service of the State.
37. His Lordship Nweze, JCA would thus hold as follows: “…when he was appointed a Commissioner, he, as a person who was employed in the Public Service of Ekiti State in the capacity of Chief Medical Officer, was deemed to have resigned, withdrawn or retired from the said employment thirty days before his appointment”. His Lordship concluded thus: “Having regard to the conclusions arrived at with regard to issue 1, his argument that he was entitled to return to service after his outing as a Commissioner will, surely, vapourise like a block of ice tossed into a furnace…From all indications, the appellant has himself to blame. An English man would describe the choice he made…as an instance of foolhardiness, which means, taking fearless but thoughtless and unnecessary risk! If this were to be an appeal from a High Court decision on an action on tort, it would have been, fittingly, dismissed with the Latin maxim: volenti nonfit injuria!”
38. Two of His Lordship’s brother Justices deserve specific mention here regarding their concurring judgments. His Lordship Salami, JCA (as he then was) held thus: “The contention of the Appellant is to the effect that failure of the Respondents to reply to his application for leave of absence must be taken on the authority of Zenon Petroleum and Gas Ltd. v. Idrisiyya (2006) NWLR (Pt. 312) 2121; Section 151 of the Evidence Act; Iga v. Amakiri (1976) 11 SC 1 and Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) to be approved is misconceived”. His Lordship Salami, JCA (as he then was) would conclude: “a person wishing to be appointed a Commissioner in a State like a person preparing to be a Member of a House of Assembly who is employed in the Public Service of the Federation or of any of the States must first resign, withdraw or retire from such service thirty days before the date of his appointment. In the circumstance, for Dr. Gabriel O. Omowaiye, the Appellant, to validly assume office as the Commissioner of Health for Ekiti State, has to resign, withdraw or retire as the Chief Medical Officer of Ekiti State Hospitals Management Board. Leave of absence does not avail him. He was required to relinquish the position either by resignation, withdrawal of service or retirement. The appropriate body, rightly, in my view, ignored his application for leave of absence. It properly deemed it to be either resignation or withdrawal or retirement from service”. And to His Lordship Owoade, JCA: “…at the time of his appointment as Commissioner, the appellant must be deemed not to be in the public service. It is in fact unconstitutional to appoint a person employed in the public service of the Federation of any State, who has not resigned, withdrawn or retired from such employment thirty days before the appointment as a Commissioner. A person employed in the public service cannot be appointed Commissioner on the basis of a transfer, secondment or even leave of absence from his employer”. No doubt, these are very strong words indeed.
39. Going by these words in Dr Gabriel O. Omowaiye v. AG of Ekiti State & anor, it is tempting to come to the concussion as did the 1st and 2nd defendants that the claimant in the instant case just has no case against especially the 1st and 2nd defendants. But as argued by the claimant, Omowaiye is markedly different form the instant case. The claimant listed out four distinguishing facts of his case from Omowaiye, the first three of which I agree with. The fourth dealing with fair hearing is not an issue given that I have already ruled out the claimant’s reliance on section 36(1) of the 1999 Constitution. I must thus reiterate here that while in Omowaiye the application for leave of absence was turned down, the claimant’s in the present case was approved; and while in Omowaiye, the plaintiff was not re-absorded, in the instant case the claimant was re-absorbed, promoted and posted. Omowaiye is markedly distinguishable from the instant case.
40. Even if, as a statement of principle, the ratio of Omowaiye is said to apply to the instant case and the claimant is deemed to have resigned or retired a day before the assumption of office as Commissioner, I asked the counsel to the 1st and 2nd defendants whether there is a rule that disallows a retired staff or one who resigned form being re-absorbed; after all, Rule 020411 of the Public Service Rules (2008) permits the re-engagement of retired officers. The counsel to the 1st and 2nd defendants gave me no answer; nor did he point to any instrument that disallows the re-engagement of retired officers or officers who resigned. So what do we have here? It is a classic case of a claimant re-absorbed by the 1st and 2nd defendants in circumstances that suggest that they themselves misapplied the law and are now taking it out on the hapless claimant. Once again, I here refer to Exhibits D8/HCSF1 and D10 to show how the 1st and 2nd defendants sought to avoid blaming themselves. The claimant did not just wake up to take up the appointment as Commissioner; he applied and got approval from the 1st and 2nd defendants. The 3rd defendant at first saw something wrong with this but recanted later; the HAGF saw everything wrong with asking the claimant to refund moneys paid to him as remuneration. I do not see in this scenario how I can put any blame on the claimant and hold him responsible for errors of the 1st and 2nd defendants i.e. if granting leave of absence was an error, and unconstitutional.
41. Counsel for the 1st and 2nd defendants toed the line of unconstitutionality of the claimant applying and obtaining leave of absence. Once again, I was not shown any provision in the Constitution that says a person wrongly granted leave of absence and deemed to have resigned or retired cannot be re-engaged. My holding then is: the ratio in Omowaiye deems the claimant to have retired or resigned, but the act of re-absorbing the claimant is an act of re-engagement of the claimant into the service of the 2nd defendant. After all, elementary law teaches that a contract can be implied by the conduct of the parties themselves. See Majekodunmi v. National Bank of Nigeria Ltd [1978] 3 SC 119, Compagne Generale de Geophysique Nigeria Ltd v. Okparavero Memorial Hospital Ltd [2011] LPELR-3995(CA), Mudiaga-Odje v. Younes Power System Nigeria Ltd [2013] LPELR-20306(CA) and Adedoyin v. Igbobi Devt Company Ltd [2014] LPELR-22994(CA). This means that retirement of the claimant vide the letter of 3rd August 2010 (Exhibit C9), which retired the claimant from service is null and void; and I so find and hold. I must stress the point here that in labour relations, it is valid and proper for an employer who upon the knowledge of an infraction by an employee chooses to condone same. See Ekunda v. University of Ibadan [200] 12 NWLR (Pt. 681) 220 CA, ACB Plc v. Nbisike [1995] 8 NWLR (Pt. 416) 725 CA, Nigerian Army v. Brig. Gen. Maude Aminu-Kano [2010] LPELR-2013(SC); [2010] 5 NWLR (Pt. 1188) 429; [2010] 1 MJSC (Pt. I) 151, Lawrence Idemudia Oborkhale v. LASU [2013] 30 NLLR (Pt. 85) 1 NIC and Ekunola v. ACBN [2006] 14 NWLR (Pt. 1000) 292. In the instant case, it was not even the claimant who committed the infraction. It was the 1st and 2nd defendants. The 1st and 2nd defendants cannot now turn around and blame the claimant, even on grounds of public policy and constitutionalism as they did in their submissions; and I so hold. I need to be understood here. But for re-absorbing the claimant, Omowaiye would have applied fully to the case of the claimant. In re-absorbing the claimant after his service as Commissioner in Kogi State, the 1st and 2nd defendants made Omowaiye inapplicable. I so hold.
42. The 1st and 2nd defendants made the point that as between the Office of Head of Service and the HAGF, the latter has the final say on the correct interpretation of legal issues including Federal Government Public Service extant circulars. In this submission lies an intuited fallacy. The interpretation of documents as is the interpretation of the law is always a question of law, a function of the Courts, not that of any other organ of Government. I made this point in Mr. Ugochukwu Duru v. First Guarantee Pension Ltd unreported Suit No. NIC/LA/246/2011, the judgment of which was delivered on 2nd February 2015; and I reiterate it here.
43. Counsel to the 1st and 2nd defendants also contended that all circulars from the 3rd defendant are to be read into the terms and conditions of the 2nd defendant; and where there is a conflict between the two, the extant circular supersedes. Once again, I must draw attention to a decision of this Court. In Ambassador D. C. B. Nwanna v. National Intelligence Agency & 2 ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16th December 2013, this Court held that circulars cannot override the PSR. In the words of the Court:
…Exhibit D14 in clarifying that those on notional promotion are affected, qualified Rule 02810(iv)(a) of the Public Service Rules (2008) without properly being inserted in the Public Service Rules. Exhibit D14 cannot override the Public Service Rules in this manner.
Exhibit D14 in that case was a circular seeking to state the place of notional promotion as far as the 8-year tenure rule laid down in another circular is concerned. The point I seek to make is that circulars, where they confer a benefit on employees surely apply as such; but where they confer burdens or take away benefits, then much more than the 1st and 2nd defendants made out is needed for them to apply unfavourably to employees.
44. On the whole, I see merit in the claimant’s case especially in terms of his reliefs (2) to (6). The Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47 held that a claim is circumscribed by the reliefs claimed. Reliefs (2), (4) – in part, (5) and (6) as claimed by the claimant accordingly succeed and are hereby granted. Relief (3) is not granted as to grant it would be superfluous given that relief (2) has been granted. Only the first part of relief (4) is granted; the part dealing with fair hearing is not since arguments in that regard have already been discountenanced. Relief (6) is granted in part only given that a grant in full will go against the holding of this Court that though the claimant is deemed to have retired or resigned given the ratio in Omowaiye, his re-absorption is tantamount to a re-engagement. In consequence, I declare and order as follows:
(1) The decision of the 1st and 2nd defendants to retire the applicant in August 2010 for the sole reason that he had served as Attorney General of Kogi State between 2003 and 2005 before resuming at his duty post as a staff of the 2nd defendant Agency in 2005 is invalid, null and void.
(2) The 1st and 2nd defendants’s letter to the claimant dated August 3, 2010 purporting to retire the claimant from service is accordingly ineffective, null and void.
(3) The defendants by themselves, their servants, subordinates and agents are hereby restrained from interfering in any way with the employment of the claimant in the service of the Federal Republic of Nigeria or otherwise obstructing him from continuing in his employment as and enjoying the benefits of a staff of the 2nd defendant.
(4) The defendants are ordered to restore all the appurtenances and applicable benefits of the claimant’s office and employment in the 2nd defendant within 30 days of this judgment, where this is not already the case.
45. Judgment is entered accordingly. I make no order as to cost.
……………………………………
Hon. Justice B. B. Kanyip, PhD
