IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN
DATE: 24th October, 2017
SUIT NO.: NICN/EN/24/2017
BETWEEN:
ACP SIMON IKECHUKWU IDOKORO================ CLAIMANT
AND
POLICE SERVICE COMMISSION INSPECTOR GENERAL OF POLICE=============== DEFENDANTS
REPRESENTATION: –
- E. Omeje, for the Claimant.
- Labaran, for the Defendant.
JUDGMENT
By an amended originating summons dated the 12th day of May, 2017 and filed on the 15th day of May, 2017 the claimant sought the determination of the following questions by this court.
1) Whether the 4 years the claimant was on officially approved study leave without pay which years were not pensionable shall count as part of his years of service in the Nigerian Police Force, regard being had to circular No CND/100/S.6/VOL.11/101 of December 1, 2006.
2) Whether the claimant is not entitled to benefit from the practice under which officers and men of the Nigerian Police Force who were granted study leave without pay had their years of service adjusted to accommodate those years they were on study leave without pay.
3) Whether section 107 of the Police Act cap P.19 laws of the Federation 2004 is not applicable to the claimant.
Upon the determination of these questions, the claimant seeks the following relieves from the court.
(1) A declaration that the claimant shall retire from the service of the Nigerian Police Force upon attaining the age of 60 years on 25th July, 2021 by virtue of Section 207 of the Police Act CAP laws of the Federation 2004.
(2) A Declaration that the period of 4 years (1984 – 1989) the claimant was on approved study leave without pay which were not pensionable should not be counted as part of his years of service.
(3) An order restraining the defendants either by themselves or through their agents or anybody or authority acting for them or on their behalf from retiring the claimant from the service of Nigerian Police Force before the claimant attains the age of 60 years on 25th July, 2021.
Attached to the originating process was circular No. CND/100/S.6/VOL.11/101 together with the Police Act as Appendix A and B respectively. The originating summons is supported by a 32 paragraph affidavit and a written address of the claimant counsel.
In response to the originating process the defendant with leave of court filed. A 3 paragraph counter affidavit annexed to the affidavit are Exhibit A (i.e circular No. CND.100/S.6/VOL.11/101 of December 1, 2006,) Exhibit B (ie circular No. PE/63903/S.57/56 of 24th July, 2008) Exhibit C (i.e circular No. HCSF/PSO/229/T/28 of 20th January, 2009). Also in support of the counter affidavit is a written address of the respondent counsel dated 13th July, 2017.
The claimant counsel on receipt of the process filed by the defendant counsel filed a reply on point of law dated and filed on 21st September, 2017.
The learned counsel for the claimant Mr. C.E. Omeje while moving the court contends that the claimant was granted approval to undertake a study in political Science without pay from 29th October, 1985 to 27th July, 1988 (i.e 4 years) that the period of study is not counted for the purpose of determining his retirement age. He also contends that this was a policy in the police force which other officers have benefited in the past. He also contends that the policy of adjustment of service to exclude years of approved study leave was backed up by circular No. CND/100/S.6/VOL.11/101 of 1st December, 2006. He further contends that by S.107 of the Police Act he ought to have retired at the age of 60 years excluding the 4 years period of study which should have seen the claimant continue in service up to 25th July, 2021. The claimant also contended that his letter of notification of retirement dated 16th February, 2017 appendix C should be discountenance, as it did not constitute his retirement. The claimant urged the court to make a declaration to that effect in the relieves sought (see paragraph 2 to 25 of the affidavit in support of the originating summons).
In his written submission the claimant counsel formulated three issues for determination. vis:
(1) Whether the 4 years the claimant was on officially approved study leave without pay which years were not pensionable shall count as part of his years of service in the Nigerian Police.
(2) Whether the claimant is not entitled to benefit from the practice under which officers and men of the Nigeria Police Force who were granted study leave without pay had their years of service adjusted to accommodate those years they were on study leave without pay.
(3) Whether S.107 of the Police Act Cap P.19 laws of the Federation 2004 is not applicable to the claimant.
The defendant on the other hand contends that the circular No. CND/100/S6/VOL.II/101 of 1st December 2006 relied upon by the claimant does not apply to the claimant and that it covers those whose course of study was for 4 years while the claimant spent 5 years at his study. He also contends that the circular covers those who undertook study between 6th July 2004 to 1st December, 2006 whereas the claimant undertook his study between 29th October, 1985 to 27th July, 1988. He further contends that assuming but not conceding that the claimant’s period of study is covered by circular No. CND/100/S6/VOL.II/101. This circular was nullified by circular No. PE/63903/S.57/56 of 24th July, 2008 and circular No. HCSF/PSO/229/T/28 of 20th January 2009 (See para 3 a – d of counter affidavit of 17th July 2017). In his written submission the defendant counsel formulated two issues for determination
(1) Whether the claimant as a public servant is bound by circular No. PE/63903/S.57/56 of 24th July, 2008 and circular No. HCSF/PSO/229/T/28 of 20th January, 2009.
(2) Whether circular No. PE/6903/S.57/56 of 24th July 2008 and circular No. HCSF/PSO/229/T/28 of 20th January, 2009 has nullified circular No.CND/100/S6/VOL.II/101 dated 1st December, 2006. He urged the court to dismiss the claims of the claimant.
DECISION OF THE COURT
I have carefully considered the various submissions of the counsels to the parties in this suit as well as the various annexures to the parties affidavits. while I agree with the issues formulated by the counsels for both parties in their written submission. However I will compress them into one issue which I belief can adequately address the issues for determination by counsels to both parties in their written address. The court formulates the issue for determination thus;
Whether the claimant was properly retired in accordance with extant laws and the civil service regulation as represented by circulars Nos. CND/100/S6/VOL.II/101 of 1st December, 2006, PE/6903/S.57/56 of 24th July 2008 and PSO/229/T/28 of 20th January 2009.
It is not in dispute that by the provisions of S.107 of the Police Act, the claimant is entitled to continue until 60 years of age in the service of the Nigerian Police. The claimant alleges that he was given approval to undertake a study leave without pay and that the period of the study leave is not to be counted as pensionable years in his career in the Nigerian Police as a policy. However the claimant failed to show any evidence of an approval given to him for the study leave. Assuming there was such an approval which is not before the court and which enabled him to be reabsorbed and the years of study as a policy would not be counted as pensionable years for his career in the Nigerian police, as canvassed by the claimant, the claimant failed to present or annex any policy document to that effect in his originating process which would have enabled the court to consider in deciding whether his claims are justifiable.
I have also carefully read appendix A & B dated 26th May, 2016 titled “Re: Determination of the Time of my Retirement from the Nigerian Police Force – Factors to Consider. ACP I S Idokoro.” And also Appendix C titled “Application for Notice of Retirement from the Nigerian Police Force” Appendix C is instructive and it is a notification by the claimant to the Nigerian Police high command that he would be retiring on the 1st September, 2017. The 1st paragraph reads:
With due respect I humbly wish to inform the Nigerian Police Force that I will be due for retirement on 1st September, 2017. I was enlisted into the force on the 1st day of September 1982. Notionally I have completed my 35 years of service, but in reality I have served for only 31 years because of 4 years of study leave without pay which was dully approved by appreciate (sic) authority. Those years were recoverable at the time it was granted . . . (under lining mine)
Annexure C was written and signed by the claimant.
The underlined portion of the above letter where the claimant alleges the 4 years were recoverable at the time it was granted is to my mind the reason the claimant has called in aid circular No CND/100/S6/VOL.II/101 Titled “Restoration of non-pensionability of the period of study leave without pay for officers” which was also relied upon by the claimant. I have carefully read the content of the above mentioned circular and I am very mindful of paragraph 4 of the circular which reads.
The effective date of this policy is 6th July, 2004 and should under no circumstances apply to officers, who have retired from the service before 6th July, 2004. . .
The claimant in this present application deposed in paragraph 4 of the affidavit in support of originating summons thus:
That in the course of my employment I was granted an approval to undertake a study in Political Science at the University of Nigeria from 29th October, 1985 to 37/7/1988, (sic)
It is unimaginable that the claimant can seek to take advantage of a policy in circular No. CND/100/S.6/VOL.II/101 which effective date of operation or commencement was 6th July, 2004. A period of 15 years have elapsed after the claimant completed his course of study as far back as 1988. It is the decision of this court that the claimant was never covered by the said circular which for all intent and purpose was not intended to have a retrospective effect.
Furthermore, assuming that circular No. CND/100/S6/VOL.II/101 were to apply to the claimant. The subsequent circular No. PE/63903/S.57/56 of 24th July, 2008 titled “Nullification of circular No. CND/100/S6/VOL.II/101 dated 1st December, 2006 on ‘restoration of non-pensionability of period of study leave without pay for officers,’ had effectively nullified the circular which the claimant is founding his claim.
Paragraph 2 of the said circular of 24th July, 2008 provides:
As a result of nullification of the circular under reference, officers who either had earlier been granted the concession to serve the period they were on study leave without pay or who applied for same are now to proceed on retirement accordingly.
By the above quoted circular which circular No. HCSF/PSO/229/T/28 came to further enforce, the claimant was to proceed on retirement in accordance with the extant policy and regulation which applied to the claimant, and I so hold.
In the light of the above position of the court I hereby hold that the claimant properly retired at the age of 35 years even though he had not attained the age of 60 years in accordance with S.107 of the Police Act. Therefore I resolve questions 1, 2, and 3 in the originating summons against the claimant and accordingly relieve No. 1 and 2 are hereby refused and accordingly dismissed.
The claimant also seeks an order of this court restraining the defendant from compulsorily retiring him from the service of the Nigerian Police. By this relief the claimant wants this court to belief that he was compulsorily retired or that he would be compulsorily retired. The claimant seems to have glossed over the effect of his letter dated 16th February, 2017 addressed to the Inspector General of Police. The first paragraph of that letter reads:
With due respect I humbly wish to inform the Nigerian Police Force that I will be due for retirement on 1st September 2017.
It is the view of this court that even assuming the 3 circulars earlier considered in this judgment were not to apply to the claimant which as I have stated earlier is not the case, the claimant had voluntarily notified the defendant of his intention to retire from service. Therefore the question of his seeking an order restraining the defendant from compulsorily retiring him does not arise. The care of Psychiatric Hospital Management Board V. E. O. Ejitagha [2005] 2 NLLR (pt 4) Pg. 86 cited by the claimant counsel has no application in the present case. That case is distinguished from the fact of this case. The case dealt with a situation where the respondent actually received a letter of compulsory retirement before the period he was due for retirement. This is not the case in the suit considered by this court, which as I have earlier noted the claimant voluntarily put in a notice of his retirement, via his letter dated 16th February, 2017. No letter of compulsory retirement was served on the claimant by the defendant in this case which would have moved the court to consider and apply any test provided in the Pension Act.
In the light of the above the third claim for an order restraining the defendant from retiring the claimant from the services of the Nigerian Police is hereby refused and accordingly dismissed.
On the whole this originating summons fails and is accordingly dismissed.
I make no order as to cost.
Judgment is entered accordingly.
Hon. Justice I. J. Essien Ph.D
(Presiding Judge)
