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National Industrial Court

Mrs. Ladi Alice Dogwo VS Government of Kogi State & 2 ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA.

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

10TH DAY OF APRIL 2019

SUIT NO. NICN/LKJ/13/2018

BETWEEN:

Mrs. Ladi Alice Dogwo

claimant

AND

  1. Government of Kogi State
  2. Kogi State Civil Service Commission
  3. Attorney General of Kogi State

defendants

 

REPRESENTATION:

  1. S. Jimba, Esq For the Claimant
  2. E. Abbas, Esq; For the defendants appearing with S. Y. Ibrahim, Esq; and R. O. Mohammed, Esq;

JUDGMENT.

  1. The claimant commenced this suit via general form of complaint dated the 27th day of April 2018 and filed on the same day. In the complaint the claimant is seeking for the following reliefs. They are:-
  2. A DECLARATION of the Honourable Court that the retirement of the Claimant from the service of Kogi State as communicated in the letter of 9th January, 2018 is unlawful, null and void.
  3. The sum of N1, 656,129.30 being the sum owed the Claimant by the 1st Defendant as at 7th February, 2018 when her purported termination was communicated to her.
  4. The sum of N10,OOO,OOO.00 (ten million naira) as damages for hardship suffered by the Claimant throughout the period of the unlawful termination of her permanent and pensionable appointment with the Kogi State Government.
  5. The Cost of this Suit.

Alternative to relief (a) above:

  1. Sum of N10,560,690.25 representing the amount the Claimant would have earned/entitled to as salaries and allowances from 7th February, 2018 up to 6th October, 2021 when she would have otherwise retired from the service of Kogi State after a fulfilled and commendable service.
  2. Both the claimant and the defendants opened and closed their respective cases on 4/12/18. The claimant testified for herself as CW1 and tendered frontloaded documents as exhibits CW1A – CW1M. The defendant called one witness, one Akinsola Kazeem Adisa, who testified as DW1. He tendered no document as exhibit. At the close of the trial, parties starting with the defendants were directed to file their final written addresses. The defendants filed their final written address on 8/1/19. The claimant filed her final written address on 16/1/19.
  3. In her testimony the claimant stated that she started her career in the civil service when she got temporary appointment with the old Benue state in 1986. Vide a letter dated 4th February, 1988, exhibit CW1A, CW1 was offered permanent and pensionable appointment into the Benue State Civil Service as Accountant II on Salary Grade Level 08/04 effective from 6th October, 1986. The appointment of the claimant was confirmed by letters dated 16th February, 1988 and 14th August, 1989, exhibit CW1B. With the creation of Kogi State on 27th August, 1991 and with her Local Government of origin, Bassa L.G.A. forming part of the newly created Kogi State, the claimant was deployed to Kogi State on Grade Level 10/5. This was communicated to her by letters dated 16-9-1991, and 7tt1 October, 1991, exhibit CW1E1-2. The claimant rose to become Director (Finance and Accounts] in the Office of the Accountant General of Kogi State on Grade Level 16 with effect from 1/1/2007, exhibit CW1K1-2. Vide a letter dated 16–07-2014, the claimant applied to the Head of Service through the Director, Personnel Management in the Office of the Accountant General of Kogi State for upgrade to Special Grade 17. But she was not promoted despite being recommended by the Director Personnel Management. The claimant stated that throughout her service, starting with Benue State Government and then Kogi State Government up to the time of her purported retirement from service which was communicated to her on the 7th of February, 2018 by a letter dated 9th January, 2018, exhibit CW1L, she has been diligent, dedicated to duty, committed and unblemished in her service and have never been queried nor has there been any disciplinary issue whatsoever traced to or connected with her. According to CW1, she was on her post as Director, Accounts in the Office of the Accountant General of Kogi State when without any wrong doing or disciplinary issue or re-organization of office she was retired from her permanent and pensionable appointment with Kogi State Civil Service. The claimant stated that as she was first appointed effective from 6th October, 1986, she would be ordinarily due for retirement on the 6th October, 2021. The reason advanced by the said letter of retirement dated 9th January, 2018 that her “services to the Civil/Public Service of the State are no longer required by the State Government” is not tenable as the Office of Director of Accounts in the Office of the Accountant General of Kogi State is still in existence. That she wrote through her lawyers, F. S. Jimba & Co to the Chairman, Kogi State Civil Service Commission on the 14th February, 2018 exhibit CW1M 1-2, and copied the 3rd Defendant giving notice of her intention to seek redress in court if their unlawful decision affecting her and communicated to her by the letter of 9th January, 2018 is not rescinded. According to the claimant the defendants have failed up till the time of filing this suit, did not take any step as requested by the said letter from her lawyers. Her claims are as stated in the statement of facts.
  4. That she is entitled to continue in office until her age of retirement, which is 6th October, 2021 having not been guilty of any misdeed in her office. The claimant requested the Court to grant her reliefs as contained in her statement of facts.
  5. Under cross-examination CW1 stated that she was promoted to Assistant Director in 1999 and to Deputy Director in 2003 and full pledge Director in 2007. As a civil servant she has salary account but her statement of account is not before the court. She served as from 2007 to 2018 as director. The letter of retirement was served on her on 7/2/18. She was employed by the Benue State, upon creation of Kogi State she was transferred to Kogi State being her state of origin. If there is such pubic service Rules Kogi State Government can retire her from service. Her letter of retirement was dated 9/1/18, but was served on her on 7/2/18. Her letter of retirement CW1L stated that her retirement benefit will be paid but she was never paid. This case was filed on 27/4/18 as per paragraph 3 of statement on oath her salary and other entitlement were not paid into her salary account. She was not having her statement of account to prove she has been paid.
  6. THE CASE FOR THE DEFENDANTS.
  7. The defendants called a sole witness by name Akinola Kazeem Adisa, who testified as DW1 and tender no exhibits. According to DW1, he is a staff of Temitope Awe & Co, of no. 62 Seriki Aro Street, off Adeniji Jones Street, Ikeja, Lagos, being the outfit retained by the 1st defendant to offer technical support for the screening of the entire work force of Kogi State. DW1 also stated that he was on ground through-out most of the days of the screening and he is familiar with the facts given rise to this case. As at the time of the screening the claimant was in the employment of the 1st defendant. The documents available during the screening of the claimant, it was revealed that the claimant was at level 16 during the time of screening; as Director of Accounts with her scheduled of duty at Ministry of information Kogi State. The screening was carried out along with other relevant authorities with a mandate which include but not limited to sensitizing the Civil Service work force in line with the relevant laws and Public Service Rules as may be required. The screening exercise was conducted in stages and terms of reference for the conduct of the screening was in categories i.e age falsification, alteration of /fake certificates, embezzlement of funds, double salary, bloated workforce to defraud the 1st  defendant, persons on the post of Director for more than Eight Years etc. During the conduct of the screening, it was discovered that a large number of the Civil Servants have been on the post of Director at their respective Ministry or Offices for over Eight years and counting in contravention of the Public Service Rules 2008 revised edition as applicable to Kogi State. Upon discovery of this facts stated in paragraph 10 above, the persons within that category had their employment terminated in accordance with the Public Service Rules which is without prejudice to age of the affected person or years of/in service of 1st defendant. All that is required was being on the post of a Director for over Eight (8) years.  As at the time of the screening the claimant has served for more than eight years on post of Director thus runs fowl of the Provision of the Public Service Rules 2008 as applicable to Kogi State. The provision of the Public Service Rules applies both at the Federal and State tiers of government. The termination of the claimant’s employment was based on the fact that she had stayed on the post of a Director for more than Eight (8) years which by the Public Service Rules must be compulsorily retired from service. There is nothing illegal/wrongful about the termination of the claimant’s employment having served as a Director for more than Eight (8) years. All the persons or former employees of the 1st defendant who suffered same fate with the claimant are being processed for payment of their retirement benefits. The claimant retirement benefit will be paid as soon as all the documentation processes are concluded. Once an employee’s employment have been terminated (just like the claimant), he or she will be entitled to payment of retirement benefits which is being managed by the pension boards upon conclusion of documentations and all necessary deductions/less of all indebtedness to the 1st  defendant. The claimant does not have any employment status as at 9th January 2018 when her employment was terminated.
  8. Under cross-examination, DW1 stated that he was retained to provide technical support in screening staff in Kogi State that is the basis why he was in court to testify. He does not have the contract agreement for service with Kogi State Government. He has never served as a civil servant but as consultant. Right now he does not have the authority of Kogi State Government to testify as per document. But have authority to testify. At the end of the technical committee a report will be submitted, report had been submitted. He is not in a position to speak on the report. All the evidence on witness statement on oath was based on the report. The report found that that the claimant has been on the post for more than 10 years 10 months he would not know if the claimant is entitled promotion. That he has not seen the letter of termination of her appointment. Exhibit CW1L did not say her retirement was on the basis of her being on Director for more than 10 years. He did not know whether payment of entitlement being processed has been paid.
  9. DEFENDANTS SUBMISSION.
  10. The counsel for the defendants formulated two issues for determination as follows:-
  11. Whether or not the claimant’s retirement based on See. 8 Rule 020810 (iv) (a) of the Public Service Rules 2008 (Revised Edition) as applicable to Kogi State could be said to be unlawful, null and void.
  12. Whether or not the claimant is entitled to the reliefs sought in her complaint filed before this honorable court.
  13. ISSUE ONE: ‘‘Whether or not the claimant’s retirement basedonSec. 8 Rule 020810 (iv) (a) of the Public Service Rules 2008 (Revised Edition) as applicable to Kogi State could be said to be unlawful, null and void.
  14. E. Z. Abbas, Esq; counsel for the defendants submitted that the Public Service Rules are rules or regulations that governs and regulates the conduct of employees in public service, See. NIGERIA CUSTOMS SEERVICE V. BAZUAYE (2005) LPELR-5948. In the instant case, the claimant is an employee of the 1stdefendant by virtue of which the public Service Rules 2008 Revised edition is applicable to her in all form and content. The claimant in both her Statement on Oath (Evidence in Chief) and under cross examination admitted that she occupied the position of a Director in the employment of the 1stdefendant for over 8 years. Under cross examination she said thus

“…yes, I was a Director from 2007 to 2018, which is Eleven years …”

  1. Counsel contended that the claimant testimony as quoted above agreed in totality that she served as a Director for 11 years before her mandatory retirement from service of the 1stdefendant. The above facts was succinctly stated by the defendant’s lone witness who testified as DW1 in his evidence in chief (Witness statement on Oath) at paragraph 10- 20.

14 Counsel submitted that the import of the provision of the public Service Rules is to give opportunity to the younger employee to grow in the cadre of Civil Service. According to counsel it is as a fact the claimant had served the 1st defendant as a Director, for more than 8 years thus runs fowl of the Provision of the Public Service Rules 2008 as applicable to Kogi State. The provision of the Public Service Rules applies both at the Federal and State tiers of government thus long settled, thus why, the termination of the claimant’s employment was based on the fact that she had stayed on the post of a Director for more than Eight (8) years which by the Public Service Rules must be compulsorily retired from service.

  1. It is the contention of counsel that there is nothing illegal/wrongful about the termination of the claimant’s employment having served as a Director for more than Eight (8) years. All the persons or former employees of the 1stdefendant who suffered same fate with the claimant are being processed for payment of their retirement benefits. The claimant retirement benefit will be paid as soon as all the documentation processes are concluded.
  2. it is further argued that the retirement of the claimant is valid and lawful and in accordance with the Rules of Public Service. Counsel urged the court to so hold.
  3. ISSUE TWO: ‘‘Whether or not the claimant is entitled to the reliefs sought in her complaint filed before this honorable court’’.
  4. In arguing issue two counsel contended that the claimant’s main claim is as contained in prayer 1, which the issue is bordering on alleged unlawful retirement. Counsel adopted his submission in respect of issue one above and stated that the issue of compulsory retirement was made in accordance with the Public Service Rules 2008 revised Edition as applicable to Kogi State.
  5. It is the contention of counsel that relief 2 which is dependent on proof of relief one-“adeclaratory relief’ has not being proved. The law is settled that declaratory reliefs are only granted at the discretion of the court. A party which seeks declaratory reliefs from the court must establish his entitlement to such reliefs from his evidence. He must do so by producing sufficient evidence to warrant the making of such an order in his favor. -DUMEZ NIG.LTD V NWAKHOBA (2008) 18 NWLR (PT.1119) P.361 @ 386 PARAGRAPHS C-D.Chukwuma -Eneh, J.S.C held as follows:

“I have to underscore the point already expounded in Lead judgment that it is settled that the plaintiff has the onus of proof on him to show that in a declaratory action as the instant one he is entitled as per his claim, in his regard he has to succeed on the strength of his own case and not on the weakness of the defense case and where he defaults in discharging this onus his claim is subject to be dismissed.”

  1. It is equally argued by counsel that a claimant is not entitled to a declaratory order even where the adversary has failed to join issues with him as declaratory relief cannot be granted on admission. See the case of P.D.P V. ABUBAKAR (2007) 3 NWLR (Pt.1022) 515 @546 PARAGRAPHS E-F where ADEKEYEJ.C.A (as he then was) held as follow:

“In civil cases, before a court can grant declaratory reliefs sought by plaintiff he must plead and lead evidence to entitle him to the declaration sought. An admission by the defendant will in no way relieve the plaintiff from the onus placed on him for proving his clam. The plaintiff has the bounding duty to satisfy the court by the evidence and not through admission in the pleading of the defendant, that he is entitled to the declaration sought. The court has a discretion to grant a declaration or refuse same, the outcome depend on how cogent and strong claimant case is’’.

  1. It is the contention of counsel that the claimant’s claim as embedded in claim 2, 3, 4,and 5, cannot stand the test of time. The claimant havefailed woefully to establish by way of Statement of Bank account to establish the exact amount and the category/kind of money or sum referred to in reliefs 2 of her claim. All relief 2 speaks of is that it is a sum of money owed the claimant. The question will be what sum of money? Counsel urged the court to hold that relief 2 is uncertain and speculative.
  2. On relief 3, it is the contention of counsel that the claimant failed to establish by way of evidence and even give particulars of damages as “Hardship” as used in relief 3 denote special damages which must be particularized.See the case of AJIGBOTOSHO V. RCC (2018) LPELR-44774 (SC), where per Muhammad JSC, held thus:-

“It is settled that a claim for special damages succeeds only on the strict proof of the specifically pleaded facts in relation to the sum claimed. Where items of special damages are not specified and strictly proved as in the instant case, recovery of same will not be granted.” 13 NWLR (PT 1159) 445.

23.Counsel referred to reliefs 4 & 5 and adopted his earlier submission to the effect that failure to prove that the retirement of the claimant is unlawful, leads automatically to the failure to be entitled to the other reliefs which includes reliefs 4 and 5 respectively. What is more is that the defendants through their witness at paragraph 20 of his statement on Oath and by exhibit CW-N tendered by the claimant (paragraph 4 thereof) had established the fact that the claimant retirement benefits will be paid which remains unchallenged and uncontroverted during the entire hearing of this case. This honorable court is bound to accept the above evidence in proof of the fact that the claimant retirement benefit shall be paid. On this submission counsel relied on the cases of FOLORINSHO & ANOR V. SALOUB (1994) 3 NWLR (PT.333) P.413 @ 433 PARAS B-H- U.B.N LTD V. OGBOH (1995) 2 NWLR (PT.380) 647 @ 654 & 669.

  1. It is the contention of counsel that the claimant’s claim is premature/put differently; the claimant has no cause of action. A cause of action accrues when there is a party who can sue and another to be sued and all the facts which are material to ensure the success of the pursuer exist. On this contention counsel cited and relied on the cases of P,H,C.N V,ALABI (2010) 5 NWLR (PT.1186) P,65@ 71, WILLIAMS V WILLIAMS (2008) 10 NWLR (PT.1095) P,364 @ 371
  2. According to counsel the claimant was retired from service in accordance with the Rules of Public Service being the set of rules that govern the terms and conditions of her service with the 1stdefendant. With this, any action taken in satisfaction of the provisions of the Rules of Public service cannot be said to be unlawful null and void capable of given rise to this action.
  3. It is the contention of counsel that there is no cause of action capable of giving rise to this suit. On this contention counsel relied on the cases of FADARE V, ATTORNEY GENERAL OF OYO STATE (1982) 4 SC1, U.B,A. PIc. V B,T,L.lndustries Ltd (2006) 19 NWLR (PT.1013) 387.
  4. In concluding g his submission counsel urged the court to hold that the claimant had failed to establish her claim by leading credible evidence in prove of her claim thus not entitled to the reliefs as contained in her claim. The claim should be dismiss this suit as same is pre-mature, frivolous and a mere academic exercise.
  5. SUBMISSION OF THE CLAIMANT.
  6. The counsel for the claimant distilled twin issues for determination. They are:-
  7. ‘‘Whether the retirement of the Claimant as communicated by the letter of retirement dated 9th January, 2018 is not null and void’’.
  8. ‘‘Whether in the circumstances of this case, the Claimant is not entitled to the reliefs sought in the complaint’’.
  9. ISSUE ONE:Whether the retirement of the Claimant as communicated by the letter of retirement dated 9thJanuary, 2018 is not null and void
  10. In arguing issue one counsel argued that parties aread idemfrom the copious references to the provisions of the Public Service Rules, that the employment of the Claimant with the Defendants is governed by the Public Service Rules and as such, one with Statutory flavor.
  11. Itis now firmly established that an employment with statutory flavour is placed higher than a mere master and servant relationship and cannot be terminated (whether by dismissal or premature retirement) except with strict compliance with the provisions of the law governing the said employment and in this case, the Public Service Rules. On this submission counsel placed reliance onKunle Osisanya v. AfriBank Nigeria Pic (2007] 6 NWLR (Pt.1031] 565, lyase v. UBTHMB (2000] 2 NWLR (Pt.643] 45; Uwangbenebe v. Nigerian Palm Produce Board (1986] 3 NWLR (Pt.29] 490; Federal Civil Service Commission v. Laoye (1989] 2 NWLR (Pt.106] 652; Eperokun v. University of Lagos (1986] 4 NWLR (Pt.34) 160; Olaniyan v. University of Lagos [1985] NWLR (Pt.9] 599.
  12. Similarly, the law is well settled as re-echoed in a plethora of cases that where no other reason is stated for the termination of an employee’s appointment except that his services were no longer needed, the court cannot go outside the said letter to discover the reasons for the termination.In the case of Iwuoha V Mobil Producing (Nig) UNLTO (2013) ALL FWLR (PT 664) 144 at 150 – 151 Paras. H – B, the Court of Appeal, per Aka’ahs JCA [now JSC) held as follows:

‘‘Learned counsel for the respondent submitted that the lower court was right when it held that in considering the issue whether the termination of the appointment of the appellant was right or wrong, the court must confine itself to the letter terminating the appointment and not go outside it to look for reasons which the appellant thinks or suspects may have been behind the termination. This represents the correct position of the law. It is settled that where no other reason is stated for the termination of appellant’s appointment except that the appellant’s services were no longer required, the court cannot go outside the said letter to discover the reasons for the termination. Please see also Chukwumah V Shell Petroleum Oev. Co. (Nig) Ltd (1993) 4 NWLR (PT 289) 512, Central Bank Of Nigeria V Amika (2000) 13 NWLR (PT 683) 21.

  1. Flowing from the above, it is our submission that the employment of the Claimant with the Defendants being one with statutory flavour cannot be terminated in this case by premature retirement except by complying strictly with the provisions of the Public Service Rules.

Under the Public Service Rules, 2008 Chapter 2, Section 8 deals with “Leaving the Service” and it is provided in the said Chapter 2, Section 8 Rule 020806 [ii) of the Public Service Rules, 2008 as follows:

‘‘An officer whose service is no longer required in the event of abolition of office, re-organization of the office or office redundancy shall be required to leave the service’’.

  1. Counsel submitted while relying on the provision of the Public ServiceRules reproduced above that the only occasions when an employee whose employment is regulated by the Public Service Rules will be required to leave the service is when [a) the office is abolished; or [b) the office is reorganized; or [c) the employee becomes redundant. This is in tandem with the rule of interpretation known as”expressio unis est exclusio ulterius” that is, the express mention of one thing, is the exclusion of all others which may have been included by implication. To buttress his submission counsel relied on the cases of PDP V. INEC (1999) 11 NWLR (PT. 626) 200; BUHARI V. YUSUF (2003) 14 NWLR (PT.841) 446.
  2. It is the contention of counsel that none of the above scenarios is applicable to the circumstances of this case, hence,the retirement of the Claimant from service on the ground that her services are no longer required is not in compliance with the Public Service Rules and therefore null, void and of no effect and we humbly urge the Honourable Court to so hold.
  3. It is argued by counsel that it is in recognition of the fact that the retirement of the Claimant from service on the ground that her services are no longer required is not justifiable that the Defendants have elected to set up a different defence in their statement of defence. But relying on the authorities ofIWUOHA V MOBIL PRODUCING (NIG) UNLTD (Supra),it is submitted that they are not entitled to do so and this Honourable Court is precluded from relying on a different reason for the retirement of the Claimant other than what was expressly stated in the letter of retirement.
  4. It is our submission that the Defendants set up an inconsistent defence and their defence is liable to fail, the Claimant having established her case. On this, we humbly draw the attention of the Honourable Court to paragraph 26 of the Claimants statement of material facts where in it is averred that”the Claimant avers that the reason advanced by the said letter of retirement dated 9thJanuary, 2018 that her “services to the civil/public service of the state are no longer required by the state government” is not tenable as the office of director of Accounts in the office of the Accountant General of Kogi State is still in existence. In response to this salient averment, the Defendants pleaded in paragraph 9 of the Defendants’ joint statement of defence that “the defendants in reaction to paragraph 26 of the statement of complaint states that the reasons advanced for the termination of the employment of the claimant is tenable and in accordance with the Public Service Rules 2008′: The averment fall short of what is required of the defence.
  5. It is to be noted, rather than plead facts to show that the retirement of the Claimant from service on the ground that “her services were no longer required” was indeed tenable and in line with Public Service Rules 2008, the Defendants at paragraphs 17, 18, 19 and 20 of their joint statement of defence proceeded to set up a totally different defence to the effect that the retirement of the Claimant was on the ground that she has served as director for more than 8 years.
  6. It is the submission of counsel that the Defendants are not allowed in law to set up such inconsistent defence as the law is very well settled that a party must be consistent in the presentation of his case as no party is allowed to approbate and reprobate on the same issue at the same time. In support of this contention counsel placed reliance on the cases ofSuberu vs. The State (2010) LPELR- 3120 (SC); (2010J 8 NWLR (Pt.1197) 586;Akpa VS. Itodo?(1997) 5 NWLR (Pt. 506) 589.
  7. According to counsel what is more, the letter of retirement, which issued from the Kogi State Civil Service Commission was signed by a certain Olowoniyi S. S. for the Chairman of the commission. Mr. Akinsola Kazeem Adisa who testified for the Defendants stated that he is a staff of Temitope Awe & Co whose address is in far away Lagos, that his firm was engaged to participate and offer “technical support” in a staff screening exercise, he admitted under cross examination that other than this contract, he has never worked with the Kogi State Government and that his evidence is derived from the result of the screening exercise. The letter of retirement issued to the Claimant did not make reference to any screening exercise, it just tersely said that “the services of the Claimant were no longer required”
  8. Thus, the sole witness of the Defendants, not being the signatory to the letter of retirement and not being an officer of the Kogi State Civil Service Commission, does not have the capacity to come to court and proffer a different reason for the retirement of the Claimant other than the reason stated in the letter of retirement and as has been submitted, the said reason, having regards to the facts and circumstances of this case is contrary to the provisions of the Public Service Rules.
  9. It is argued by counsel that the Claimant was not retired from service because she has been a director for more than 8 years, the evidence on record is that the Claimant became a director in 2007 by which calculation she was 8 years as a director by 2015 but she continued serving the defendants up until 2018 when they retired her prematurely. According to counsel assuming without conceding that the defendants can setup a different reason for the retirement of the Claimant other than the one stated in the letter of retirement as they have done, it is our further submission that the said reason given by the Defendants that the retirement of the Claimant is on the basis that she has been a director for more than eight years is still not a justifiable reason for her premature retirement having regards to the provisions of the Public Service Rules. As a starting point,chapter 2, section 8 and Rule 020810[i) of the Public Service Rules provides that:

“The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier”

  1. As can be clearly seen from the relevant rule of the Public Service Rules reproduced above, the retirement age for ALL GRADES, without exception is 60 years or 35 years of pensionable service whichever is earlier.

On the other hand, section 8 Rule 020810 [iv) [a) which the Defendants rely on provides that:

“A director shall compulsorily retire upon serving eight years on the post”

My Lord, while the first provision reproduced above expressly talks about “service”, the second provision talks about “post”. It is our humble submission that to be retired from “service” and to be retired from a “post are two different things and the Defendants cannot rely on a provision that relates to retirement from a “post” to retire the Complainant from “service”.

  1. In the very related case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. GUSAU (2017) LPELR·42081 (SC) page 24 – 25, Paras C – A, where the Respondent was retired from service on ground of attainment of 10 years on a post, the Supreme Court held as follows:

It appears to me that the particular provision of Exhibit 24 on which the Appellants relied to compulsorily retire the 2nd Plaintiff/Respondent, on the ground that he had served on the duty post of Comptroller for 10 years, is a mere statement of policy intent. It has no force of law and it is in conflict with the provisions of Section 8 Rule 020810(i) or Section 8 Rule 020810(ii), read together with Chapter 16 Rule 160103, of the Public Service Rules, 2008 which provide that the compulsory retirement age for all grades of officers in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.

For avoidance of any doubt, an officer who has remained on a duty post for 10 years could be made to vacate that duty post by the management of Nigeria Customs Service. Such officer cannot however, be compulsorily retired from the Service by the Appellants unless the officer had attained 60 years of age or had spent 35 years in service, whichever is earlier.

  1. Counsel in an attempt to support his contention reproduce the whole of Section 8, Rule 020810 [iv] which embodies rules [a] and [b) as follows: Section 8, Rule 020810

[iv]       Provided the officer would not have attained the retirement age of 60

years or spent 35 years of pensionable service, whichever is earlier;

[a]        a Director shall compulsorily retire upon serving eight years on the

post; and

[b)        a Permanent Secretary shall hold office for a term of four years and

renewable for a further term of four years, subject to satisfactory

performance, and no more.

  1. From the foregoing, it would be see clearly that sub-rule [iv] of Rule 020810 of the Public Service Rules regulate only the tenure or post of “director” or post of “permanent secretary” and not “years of service” and the defendants who clearly retired the Claimant on a different consideration should not be allowed by this Honourable Court to use the said rule as an alibi to justify what is patently contrary to relevant provisions of the Public Service Rules.
  2. Counsel contended that having thus established that the Claimant’s employment with the Defendants is one with Statutory flavour and that her retirement from service was premature and contrary to the relevant provisions of the Public Service Rules, it is submitted that on the authority of several decided cases that the Claimant is entitled to be re-instated to her position as an employee with the Kogi State Civil Service.
  3. In the case ofOLUFEAGBA & ORS v. ABDUR-RAHEEM & ORS (2009]LPELR-2613(SC), page 91, the Supreme Court stated this position as follows:

The remedy to unlawful termination of employment is reinstatement. The mere fact that the employees had secured another gainful employment or have been replaced are not factors to prevent the court from making the requisite orders. Olanivan v. University of Lagos [1985] 2 NWLR pg. 599, at 612- 613 and 622 – 623 Eperokun v. University of Lagos [1986} 4 N WLR pt. 34 at pg. 162.

  1. Relying on the above authority, counsel urged the Court to declare the retirement of the Claimant from the service of Kogi State as null and void and to make an order re-instating the Claimant to the service of the Kogi State Civil Service Commission.
  2. On the whole, counsel urged the Court to resolve this issue in favour of the Claimant.
  3. ISSUE TWO:Whether in the circumstances of this case, the Claimant is not entitled tothe reliefs sought in the complaint.
  4. It is conceded that in an action such as this, the reliefs claimed by the Claimant will only be granted where the Claimant has, on the strength of her case, established to the satisfaction of the court that she is entitled to the reliefs being sought. On this submission counsel placed reliance on the cases ofCombined Trade limited v. All States Trust Bank limited (1998) 2 NWLR [Pt.576) 56; Attorney-General of Anambra State v. Onuselogu – (1987) 4 NWLR [Pt.66) 547; Nirnanteks Associates v. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt.17 4) 411; Tokirni v. Fagite [1999] 10 NWLR (Pt.624] 588; Olowu v. Olowu (1985) 3 NWLR [pt.13) 372.
  5. According to counsel in the instant case, the Claimant has established the following:
  6. That she was offered a permanent and pensionable employment effective from 6thOctober, 1986.

 

  1. That the employment is regulated by the Public Service Rules.

 

  1. That as a result of [b] above, that she is due to retire on 6thOctober,2021.

 

  1. That she served without any query or any disciplinary issue.

 

  1. That the office that she last occupied is still available and has not been re-organised or abolished.

 

  1. That her retirement from service is premature.
  2. Counsel submitted that Exhibit CW1 B shows that the Claimant’s date of birth is 23rdOctober, 1961 while her date of first appointment is stated as 6thOctober, 1986. By the above, the Claimant will be 60 years of age on 23rd October, 2021 while she will clock 35 years in service by 6th  October, 2021. Going by the Public Service Rules therefore, which provides that the retirement age shall be 60 years or 35 years in pensionable service whichever is earlier, it follows that the due date for the Claimant to retire is 6th October, 2021 as pleaded by the Claimant in paragraph 25 of her statement of material facts.
  3. According to counsel in the circumstances of this case, the two criticalthings that the Claimant ought to show to succeed in her action is that she was employed with the defendant and that the employment, which is one with statutory flavour was prematurely brought to an end in a manner that is contrary to the law, and this, the Claimant has done. Thus, counsel urged the court to hold that the retirement of the Claimant by means of the letter dated 9thJanuary, 2018 is unlawful, null and void and to accordingly make an order re-instating the Claimant to her employment with the defendants in view of the fact that the employment is one with statutory flavour. Counsel further urged the court to hold that the Claimant is entitled to all the reliefs sought in this action and to accordingly determine the suit in favour of the Claimant and grant the reliefs claimed therein.
  4. In concluding his submission counsel argued that the Claimant is entitled to the reliefs claimed in this action having regard to the fact that neither the reason stated in the letter of retirement nor the one advanced in the statement of defence justifies the retirement of the Claimant as both reasons are at variance and inapplicable to the circumstances of the Claimant’s employment with the Defendants. The Claimant has made out a case that her retirement from the service of the Kogi State Government did not strictly comply with the provisions of the Public Service Rules as applicable to her employment. Counsel urged the court to grant the reliefs sought by the Claimant in this action.

 

COURT’S DECISION

  1. I have carefully and painstakingly read through and considered all the processes filed in this suit and submissions advanced by counsel for both parties.
  2. The case put forward for determination by the claimant is straightforward and not a complicated one. From the evidence on record the claimant was employed by the Benue State Civil Service Commission in year 1986. The services of the claimant was transferred to the Kogi State Civil Service Commission sequel to the creation of Kogi state in year 1991., having hailed from Bassa local Government Areaforming part of Kogi State. The claimant rose to become a director in 2007 in the Office of the Accountant General of Kogi State. However, vide exhibit CW1L, a letter dated 9/1/18 the claimant was compulsorily retired from the Civil service of Kogi State on the ground that her services are no longer required. Upon receipt of exhibit CW1L the claimant through her counsel demanded for her reinstatement.
  3. When there was no response to the demand for rescinding of the decision to compulsorily retire claimant from service, she instituted this suit seeking declaration thatthe retirement of the Claimant by means of the letter dated 9thJanuary, 2018 is unlawful, null and void. The claimant is accordingly seeking for an order re-instating her back to her employment with the defendants in view of the fact that the employment is one with statutory flavour. The clamant is also seeking for payment of outstanding salaries and allowances. The retirement being premature, it is null and void.
  4. The defendants on their part are claiming that the claimant was compulsorily retired from service based on the 8-year tenure rule in the Public Service Rules 2008. The reason adduced in the defence was totally different from the reason stated in the letter of compulsory retirement exhibit CW1L as the reason for retirement of the claimant.
  5. The current Public Service Rules took over from the erstwhile Civil Service Rules. Although the Civil Service Rules were made before the 1979 Constitution, they, however, took effect by virtue of section 274 of the 1979 Constitution with necessary modifications. And by Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, the Civil Service Rules of the Federal Public Service governs the conditions of service of Federal Public Servants and they are made pursuant to the powers conferred by the Constitution. The Rules, therefore, have constitutional force and they invest the public servant, over whom they prevail, a legal status, which place their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. What this means is that a fortiori the Public Service Rules are a product of the Constitution and so have constitutional force.
  6. It has long been settled by a long line of judicial decision that an employee whose contract is that of purely master and servant, servant who hold office at the pleasure of the employer or one whose employment is with statutory flavour, where he is suing contesting determination of his employment, must plead and his employment and terms and condition of service and must not only plead but prove by evidence the wrongful nature of his disengament from service. See AJI V CHAD BASIN DEV. AUTHORITY & ANOR. (2015) 3-4 SC (PT.III) 1 @ 20 PARA 5. Once an employee has complained that his employment has been wrongfully determined, he has the onus, first to place before the court the terms of the contract of employment and second, to prove in what manner the said terms were breached by the employer. It is not in principle for the employ who is a defendant to an action brought by the employer to prove any of these issues. FRANCIS KATTO V CBN (1999) 5 SC (PT.II) 21, IWUCHUKWU V NWIZU (1994) 7 NWLR (PT.357) 379 @ 412 SC, AMODU V AMODE (1990) 9-10 SC 61.
  7. As the contract of service is the bedrock upon which an aggrieved employee must found his case. He succeed or fails upon the terms thereof. This means it is the condition of service the court will look at to find out whether there is compliance or non-compliance with the procedure laid down for the disengagement of the employee or not.
  8. The claimant in this suit has made it categorical that her employment was governed by the Public Service Rules, this the defendants are all agreed to. The claimant and the defendants having agreed that the claimant contract of employment is governed by the Public Service Rules are asserting that the claimant’s employment is with statutory flavour. An employment enjoys statutory flavour when the contract of service is governed by statute or where the condition of service are contained in regulations derived from statutory provisions.In the circumstance they invest in the employee with a legal status higher than the ordinary master/servant relationship. See IMOLOME V WAEC (1992) 12 SC (Pt.1) 82, UNIVERSITY OF LAGOS V OLANIYAN (1985) 1 SC (REPRINT) 199; SHITTA-BEY V PUBLIC SERVICE COMMISSION (1981) 1 SC 40; (1981) 1 SC (REPRINT) 26.
  9. The parties in this suit are all agreed that the public Service Rules 2008 (Revised) made by the Federal Government are the applicable Public Service Rules, they are the conditions of service governing the employment of the claimant.
  10. The law is settled beyond reproach that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute or regulations. There is no short cut to compliance with the laid down procedure. See BAMGBOYE V UNIVERSITY OF ILORIN (1999) 6 SC (PTII) 72, OLATUNBOSUN V N.I.S.E.R. COUNCIL (1988) 6 SC 56, LONGE V FBN (2010) 6 NWLR (PT.1189) 1 SC, MENAKAYA V MENAKAYA 2001 16 NWLR PT.738 203, IDERIMA V RSCSC (2005) 16 NWLR (PT.951) 378.
  11. There is no disputing the fact that an employer has the right to do away with the services of his employee with or without reasons. To disengage an employee without giving reasons for doing can only be wrongful or contrary to condition of service when the contract of service is produced examined by the court and found to have been breached see TEXACO NIGERIA PLC V KEHINDE 2002 FWLR PT.94 143.
  12. The defendant by exhibit CW1L gave the reasons for retiring the claimant as her service no longer required. However, the defendants in their pleading before the court asserted that the claimant was compulsorily retired under the tenure policy as contained in section 8 of Chapter 2 of the Public service Rules 2000, (Revised)Rule 020810 [iv) [a) which the Defendants rely on provides that:

“A director shall compulsorily retire upon serving eight years on the post”

  1. It is lucidly clear that the reason given in the letter of retirement exhibit CW1L is totally different from the reasons the defendants advanced in their pleadings, as the reason for retiring the claimant from service of Kogi State Government.
  2. As pointed out earlier in this judgment an employer has unfettered right to do away with services of his employee. It is equally the law that an employer can do away with the service of his employee with reasons or without reasons. However, where reasons have been given for the action of the employer the employer is duty bound to prove to the satisfaction of the court of the reasons adduced for the determination of the employment of his employee. In the case at hand the defendants having stated the reason for retiring the claimant in the letter of retirement exhibit CW1L they are duty bound to stick to the reason. The law will not allow shifting of ground.The Defendants cannot be heard to say the claimant was retired because her service are no longer required and in another breadth to say the retirement of the claimant was because she has served for eight years as director. This must be an afterthought.
  3. The provisions ofPublic Service Rules, 2008 Chapter 2, Section 8 deals with “Leaving the Service” and it is provided in the said Chapter 2, Section 8 Rule 020806 [ii) of the Public Service Rules, 2008 as follows:

‘‘An officer whose service is no longer required in the event of abolition of office, re-organization of the office or office redundancy shall be required to leave the service’’.

  1. In view of the above provision of the Public Service Rules which deals with leaving service. Therefore, for the defendants to be able to justify the decision communicated to the claimant as per exhibit CW1L, they must show by evidence that either the office of the claimant has been abolished, re-organized or there is redundancy i.e there are many more Directors than what is required. The claimant has insisted in her evidence that the office still exist and there was no reorganization or redundancy. This piece of evidence was not countered or contradicted by the defendant. Rather the defendant set up a new and totally different defence not contained or communicated to the claimant as the reason for her retirement i.e serving 8 years on the post of Director which according to the defendant contravened the provisions of Public Service Rules 2008.
  2. Having shown that there is no scintilla of evidence adduced by the defendants to establish that the claimant was retired from service on the ground of her services not required as required by the Chapter 2 Section 8 Rule 020806 [ii) of the Public Service Rules, 2008, the retirement of the claimant was contrary to the extant Public Service Rule, therefore it is null and void and of no effect. Exhibit CW1L is not capable of retiring the claimant from the Civil Service of the Kogi State Government.
  3. The above finding is enough to resolve the dispute between the parties in this suit. However, since the defendant has averred in their defence that the claimant was retired based on her serving as a director for over 8 years, I shall consider and resolve that issue so that if there is an appeal and I was found to be wrong in declaring exhibit CW1L null and void, the Court of Appeal will have the benefit of having the view of this court on the defendants defence.
  4. The point must made here that where more than a single document provides for the terms of employment, the various documents must be jointly construed to have a correct and proper account of the terms and conditions of service. See LADIPO V CHEVRON NIGERIA LTD 2005 1 NWLR PT.907 277@ 289 – 292. In the Public Serviceamendment of the public service rules is done through circulars, which are issued from time to time.
  5. The concept of the tenure of Directors and Permanent Secretaries in the Public Service was an innovation introduced into the Public Service in 2009 videcircular dated 26th January 2009 with Ref. No. HCSF/PSO/PMD/1051/T2 from the Office of the Head of the Civil Service of the Federation (OHCSF). The content of the circular is now incorporated into chapter 2 Section 8 Rule 020810 (1v) ((a) of Public Service Rules 2008. However, the said public Service Rule 020810 (iv) (a) has been suspended by Circular Reference No. HCSF/428/S.1/139 dated 20thJune 2016 from the office of the Head of Service of the Federation (OHCSF). For proper appreciation the provisions of the Circular of 20th June 2016, signed by Mrs. Winifred E. Oyo-Ita, FCA, Head of the Civil Service of the Federation, read, thus:

 

‘‘SUSPENSION OF THE TENURE POLICY

IN THE FEDERAL CIVIL SERVICE.

 

With reference to letter No. SH/CSO/100/A/1462 dated 17th June 2016, I wish to convey Mr. President’s directive that the Tenure Policy in the Federal Civil Service is suspended with immediate effect.

  1. This notice is for the attention of all concerned for compliance.

 

Mrs. Winifred E. Oyo-Ita, FCA

Head of the Civil Service of the Federation’’.

  1. The above circular is very clear and unambiguous it says what it says. This means that as at the time the purported tenure rule was applied to retire the claimant from service, the tenure policy rule was no longer in operation as it has been put on hold or on suspension. The defendants were wrong in applying the tenure policy rule to claimant as per exhibit CW1L, a letter dated 9thJanuary 2018. Vide the circular of 20thJanuary 2016, the tenure policy rule was put in abeyance. Therefore, it cannot be relied upon to retire the claimant compulsorily or any other public servant. Such an action can only be taken or the rule applied when the suspension is lifted, until then the rule is now dormant forced to go to sleep. This does not mean that claimant is immune from retirement. What it means is that clamant can be retired but by due process since her employment is with statutory flavour.
  2. It is to be noted even if the tenure rule has not been suspended or put on hold, the defendant have not adduced credible evidence to prove that the compulsory retirement of the claimant either under the tenure rule or under service no longer required. The reason being that the witness of the defendants Mr. Akinsola, who testified as DW1 is not a competent witness to testify on Public Service Rules. The witness has stated in his evidence that he is an employee ofTemitope Awe & Co, of no. 62 Seriki Aro Street, off Adeniji Jones Street, Ikeja, Lagos, a firm of audit engaged by Kogi State Government to provide Technical support in the screening of its work force. He has admitted not being a staff of the Kogi State Government and he has not ever worked in the Civil Service. It is also in evidence that he was only present throughout the period of the exercise in most of the days. This means he was not present in some days of the exercise. He also told the court that all his testimony in the witness statement on oath was based on the report of the exercise. He also told the court under cross-examination that he cannot speak on the report. To make matters worse for the defendants the purported report of the exercise which DW1 said he based his testimony on was not tendered in evidence in the course of the trial. What all this means is that the evidence given by DW1 is hearsay which is inadmissible in law. In the circumstance I hereby reject the evidence of DW1 in its entirety for being hearsay evidence. In the end the defendants have ended up not adducing any evidence to support their pleading. It is well settled that bare pleadings without evidence in support cannot prove the case of a party. The law is trite that pldeading not supported by evidence are deemed to be abandoned. This is the case of the defendants. See JACOB JOLAYEMI & ORS. V ALHAJI RAJI OLAOYE Z& ANOR. 2004 5 SCNJ 305 @ 315. The Witness has not also told the court he was testifying as an expert.
  3. On the claim for salary being owed, leave bonuses, imprest the claimant has not adduced cogent evidence in proof. The claimant under cross-examination has told this court she receives her salary through her bank account. The claimant should have produced her bank statement of account where she receives salary or pay slip to enable court ascertained the claim.
  4. Having regards to the finding of the court the claimant is not entitled to N10,000,000.00 (Ten Million Naira) damages for hardship due to lack of evidence in proof.
  5. With the declaration of exhibit CW1L as null and void, the alternative relief being sought becomes otiose.
  6. For avoidance of doubt the orders of the court based on the above findings is as follows:-
  7. The retirement of the claimant from the service of Kogi State Government as per exhibit CW1L communicated to the claimant is unlawful, null and void.
  8. An order is hereby granted reinstating the claimant with immediate effect back to the Civil Service of the Kogi State Government as a Director with all her entitlement.
  9. The claimant shall be paid to all her salaries and allowances from the date of her purported retirement to date and subsequently thereafter until she retired from service in accordance with the condition of service..
  10. Before ending my judgment, I wish to state that to force a public servant into compulsory retirement from service, before he gets to his retirement age or without following due process or in contravention with laid down rules and regulations is an unusual thing to do. Indeed, it is disruptive and has devastating effect on expectations and plans of the person affected.

Judgment is entered accordingly. I make no order as to cost.

 

Sanusi Kado,

Judge.

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