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AUGUSTINE EGBUNU ONUBI VS KOGI STATE CIVIL SERVICE

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

 

Dated this 11th day of October, 2018          

SUIT N0: NICN/LKJ/12/2017

 

BETWEEN:

AUGUSTINE EGBUNU ONUBI

CLAIMANT

AND

KOGI STATE CIVIL SERVICE COMMISSION

DEFENDANT

Representation:

S.I. Ameh (SAN) with T.B. Maiyaki, Z. Akubo, S. Unwuchola and I.N. Igomu for the Claimant.

B.Kadiri with F.A. Ogunmola, F.B. Opayori and R.E. Emma for the Defendant.

Judgment.

This suit was originally commenced by way of a complaint filed on the 12th of December 2017 which was accompanied by a statement of facts, list of witnesses, witness statement on oath, list of documents and copies of the documents to be relied upon at trial.

In reaction, the Defendant entered appearance and filed on the 19th of January, 2018, a statement of defence.

The Claimant then filed a reply on the 31st of January, 2018. Following that, the Claimant on the 12th of February, 2018 filed an application for an order granting leave to the parties to commence pre-trial conference as provided for under Order 12 of the Rules of this court. The said application was granted as prayed.

Consequent upon the pre-trial proceeding, parties on the 18th of April, 2018 filed a Report of Pre-trial conference wherein the parties agreed as follows:

  1. The Defendant agreed with the Claimant on all the material facts leading to this Suit. Hence, there is nothing contentious as to the facts before this Honourable Court.
  2. The parties at the pre-trial conference, agreed that the area of contention is in Law and that both parties should address the Court on the issues below having regards to Order 37 Rule 6 of the Rules of this Honourable Court.
  3. a) Whether the Defendant in this Suit having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) have statutory authority to retire the Claimant from the Civil Service of Kogi State.
  4. b) Whether the Defendant complied with the Public Service Rules 2008 Edition in retiring the Claimant from the Civil Service of Kogi State having not served for 35 years or attained 65years of age.
  5. The parties further agreed at Pre-trial conference to consolidate this suit with the following in view of the fact that all the facts leading to the suits below listed are similar to the instant case.

Suit NIC/LKJ/10/2017

Suit NIC/LKJ/11/2017

Suit NIC/LKJ/13/2017

While the application for consolidation was granted, parties further agreed to address the court upon the settled issues above and in that regard, parties filed their respective addresses. That of the claimant was filed on the 18th of April, 2018 while that of the Defendant was filed on the 11th of May, 2018. Following the exchange of the processes, counsel to the Claimant present, S.I. Ameh (SAN) on the 14th of May, 2018 opted for the suit to be by Originating summons and applied to the court for same. Counsel to the Defendant, A.O. Suleiman did not object and the Court granted the application.

It is upon the grant of the said application that this suit is predicated on the Originating summons filed on the  21st May, 2018 which was accompanied by a 35 paragraphs affidavit deposed to by the Claimant, Augustine Egbunu Onubi, several exhibits and a written address.

The originating summons raises two question for determination to wit:

  1. Whether having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Defendant herein have statutory authority to retire the Claimant from the Civil Service of Kogi State without complying with the Due process of Law.
  2. Whether the Defendant complied with the Public Service Rules 2008 Edition in retiring the Claimant from the Civil Service of Kogi State having not served for 35 years or attained 60 years of age?

 Upon the determination of the above questions, the claimant is seeking for the following reliefs:

  1. A DECLARATION that the appointment of the Claimant in the Civil Service of Kogi State is still valid, extant and subsisting.
  2. A DECLARATION that the appointment of the Claimant as Permanent Secretary in the Civil Service of Kogi State which was made by the Defendant vide its letter of 3rdJanuary, 2013 is still extant and subsisting.
  3. A DECLARATION that the letter of approval of retirement from Kogi State Service with Ref. No. S.114/III/638 dated 13thSeptember 2017 by which the Defendant purportedly retired the Claimant from Kogi State Civil Service is ineffectual, null and void and of no effect whatsoever.
  4. AN ORDER setting aside the letter of approval of retirement from Kogi State Service with Ref. No. S.114/III/638 dated 13thSeptember 2017 issued by the Defendant and served on the Claimant.
  5. AN ORDER reinstating the Claimant to his current position as Permanent Secretary in the Kogi State Civil Service forthwith with full benefits, salary and emoluments.
  6. AN ORDER directing forthwith the Defendant, its servants, agents, privies, officers howsoever described to continue to recognize and accord due regard to the Claimant’s position as Permanent Secretary in the Kogi State Civil Service with full benefits, salary and emoluments.
  7. AN ORDER directing the Defendant, its servants, agents, privies, officers however described to effect payment of all arrears of salaries, benefits and emoluments due and or accruable to the Claimant from September 2017 to date.
  8. AN ORDER restraining the Defendant either by itself or its servants, agents, privies, officers, authorities, bodies or any other persons howsoever described from interfering, disturbing or howsoever tampering with the Claimant’s appointment in the Civil Service of Kogi State and or his appointment as Permanent Secretary in the said Service until he retires in line with extant laws, civil service rules and other applicable regulations.
  9. AND for such further or other orders this Honourable Court may deem fit to make in the circumstances of this case.

In reaction to the Originating Summons, the Defendant on the 5th of July, 2018 filed a 15 paragraphs  counter affidavit deposed to by one Sanni Musari and a written address.

Arising from the written address in support of the originating summons, learned counsel to the Claimant, Z. Akubo formulated two issues for determination to wit:

  1. Whether having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Defendant herein have statutory authority to retire the Claimant from the Civil Service of Kogi State without complying with the Due process of Law.
  2. Whether the Defendant complied with the Public Service Rules 2008 Edition in retiring the Claimant from the Civil Service of Kogi State having not served for 35 years or attained 60 years of age?

Learned counsel submitted that both issues are interrelated and interwoven and therefore opted to argue both issues jointly. In doing so, counsel started his argument by submitting that the answers to the above questions in the two issues above as put forward by the Claimant are in the negative.

Upon the submission, counsel posited that the facts in the affidavit and the Exhibits proves that the Claimant is an employee of the Defendant and rose to the rank of Permanent Secretary before the current administration of the Kogi State Government. Counsel urged the court to take recourse to paragraph 2 of the Defendant’s statement of defence where the Defendant conceded and acknowledged that the Claimant was at all material times in the employment of the Defendant until he was subsequently allegedly retired from office as Permanent Secretary.

Learned counsel then posited that the Claimant’s employment is not a mere master- servant relationship but that which has a statutory force of law who’s employment cannot be determined or put differently who cannot be fired at the whims and caprice of his employer. He cited the case of ASO TIM DOZ INVESTMENT Co. LTD v. ABUJA MARKETS MANAGEMENT LTD & ANOR CITATION: (2016) LPELR-40367(CA).

Counsel reckoned the definition of a public officer as provided in the case of ABUBAKAR v. Gov., Gombe State (2002) 17 NWLR (797) 533 at 560 paras C- F; section 18(1) of the Interpretation Act and Section 48 of the Trade Dispute Act.

Counsel then contended that though the employment of public servants are governed by the general principle of law governing contracts of employment, they are in a special class and are contingent on the procedure laid down in the Public Services Rules. He cited the case of Shitta — Bey v. Federal Public Service Commission (1981) S.C 26 at 35-36 and New Nigerian Bank v. Oniovosa (1995) 9 NWLR(PT419)327 C.A. whereupon he urged the court to hold that the employment of the Claimant enjoys statutory flavor.

Counsel then proceeded to address the circumstances and/or laid down procedure Statutorily prescribed for bringing to an end the Claimant’s employment with the Defendant by referring to the Public Service Rules (2008 Edition), and the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Counsel specifically noted the provisions on i) a. Compulsory Retirement as provided under Chapter 2, Section 8 Rules 020810 (i) & (ii); Retirement in Public Interest as provided in Chapter 3 Section 5 Rules 030601; Termination as provided under Chapter 2 Section 8 Rules 020803; Resignation as provided under Chapter 2 Section 8 Rules 020804 and  Dismissal as provided under Chapter 3, Section 3 Rules 030407.

He then submitted that the Defendant have relied on Retirement in Public Interest as provided in Chapter 3 Section 5 Rules 030601 in regards to the case of the Claimant and in view of Exhibit A15. Counsel then contended that the Defendant did not state nor adduce any reason for the said retirement other than that the retirement was approved by the Defendant “in the Public interest” and that the Defendant did not follow the procedure statutorily prescribed for the retirement of the Claimant.

Counsel referred to Section 6 Rule 030601 of the Public Service Rules 2008 Edition and contended that the Defendant being the Agency of Government is bound to adhere to the provisions of the Public Service Rules.

Learned counsel further contended that that the defence relying on Section 208 of the 1999 Constitution (as altered and amended) cannot by any stretch of imagination be justified or protected because by Exhibit A15, no reference is made of the Governor as the person retiring or approving the retirement of the Claimant from Civil Service of the State.

He urged the Court to hold that the Governor of Kogi State did not exercise his powers as contained in Section 208 of the 1999 Constitution (as altered and amended) to purportedly retire the Claimant from the Civil Service of Kogi State because he does not possess the power to retire the Claimant as the power conferred on the Governor under Section 208 of the Constitution is only limited to Appointment and removal of persons so appointed by the Governor which also exempts persons appointed from the Civil Service of the State. counsel cited the case of NAWA v. ATT.-GEN., CROSS RIVER STATE (2008) All FWLR (Pt. 401) pg. 807 pp. 829 paras E-F

Counsel quoted the provision of section 208 of the Constitution and submitted that the Constitution only empowers the Governor to appoint and consequently remove anyone he appoints to hold office but not to remove career Civil Servants who rose up to the rank of Permanent Secretary or a civil servant appointed to the position of Permanent Secretary from the pool of Directors in the Civil Service.

Counsel argued that the use of the word ‘shall’ denotes mandatoriness and leaves no room for discretion. He cited the case of Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) pg 490 pp 525 and in that light submitted that it is the Governor of the State, who is constitutionally and personally saddled with the aforesaid responsibility under Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as altered and amended).

Counsel further posited that assuming without conceding that, the Chairman of the Kogi State Civil Service Commission who authored the retirement letter of the Claimant acted under delegated authority of which the language of the Constitution in Section 208 does not permit (in the first place), the language of the letter conveying approval for the retirement of the Claimant in itself is flawed as the Chairman never indicated therein that he was acting under delegated authority or power. It is manifestly clear that, the said letter never emanated from the office of the Governor who has the power to appoint and remove. Counsel cited the case of F.U.T, Yola v. A.S.U.U [2013] 1 NWLR (Pt.1335) pg 249 pp 280 paras B-G. counsel maintained that there is no evidence of delegation before the court and the delegation cannot be assumed. He cited also the case of Wilson V. A-G Bendel State (1985)1 NWLR (Pt. 4) pg 572.

Counsel concluded by urging the court to Court to grant the reliefs sought by the Claimant in the Originating Summons, and declare the purported retirement of the Claimant by the Defendant as null, void and of no effect whatsoever.

By way of response, learned counsel to the Defendant, B. Kadiri, through the written address in support of the counter affidavit filed in  opposition to the Originating summons formulated two issues for determination to wit:

  1. Whether the defendant in this suit having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) has statutory authority to retire the claimant from the Civil Service of Kogi State.
  2. Whether the defendant complied with the Public Service Rules 2008 Edition in retiring the claimants from the Civil Service of Kogi State haven served for a period of 6 years as a permanent Secretary.

Learned counsel also opted to argue both issue together and in so doing, he started off by contending that Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) vested in the Governor of Kogi State the power to appoint and remove permanent secretaries in the state. he added that this power so vested in the Governor when exercised by him is communicated to any affected person(s) by the defendant, as the defendant is the commission responsible for the employment, appointment, retirement, dismissal and/or termination of appointment of the employees of the Kogi State Government.

Counsel contended that the words used in section 208 (1) and (2) of the 1999 Constitution above are plain, clear and unambiguous which is to the effect that the Governor has the power to appoint and remove permanent secretaries. Therefore, it is unnecessary to ascribe or import anything into the subsections other than their ordinary meaning. He cited the cases of Tegwonor v. State (2008) 1 NWLR (Pt. 1069) 630 at 656 paras. A-B and Ibrahim v. Mohammed (2003) LPELR- 1409 SC at 23, paras. A-C.

Counsel contended that the fact that the defendant is responsible for the employment, appointment, retirement, dismissal and/or termination of appointment of the employees of the Kogi State Government does not deprive the Governor of its constitutional power as enshrined in S. 208 of the constitution to remove the claimant as it is trite that the 1999 Constitution of the Federal Republic of Nigeria (as Amended) is supreme to all other laws in the country.

Counsel added that the governor is not required by the section to give any reason for the exercise of his power under section 208 of the constitution, citing the case of Shitta-Bey v. A.G. Fed (1998) LPELR-3055 (SC) at 44 paras. A-B.

Furthermore, counsel submitted that the power of the Governor is an executive or administrative power which can be delegated and same was delegated to the defendant by the Governor of Kogi State in the appointment and removal of Permanent Secretaries. He referred to exhibits A14 and A15.

Counsel in respect to the delegation stated two maxims and the case of Gwonto vs. State (1983) 1 NCR 19 at 38.

Counsel submitted that failure of the defendant to indicate in exhibit A15 which it served on the claimant that it was acting on behalf of the Governor is not fatal as same amounts to poor drafting of the letter which does not vitiate the fact that it was done on the directive of the Executive Governor of Kogi State. He cited the case of Shitta-Bey v. AG Fed & Anor (1998) LPELR-3055 (SC) at 39 paras. E-F

Counsel also contended that assuming without conceding that the defendant was not delegated by the Governor to retire the claimant as a permanent secretary, it does not lie in the mouth of the claimant to complain of this more so that the letter appointing the claimant as a permanent secretary was equally signed by the chairman of the defendant and communicated to the claimant. He cited the case of Sheket vs. N.A.F (2007) 14NWLR (Pt.1053) 159 at 199 paras. F-G.

Counsel further posited that assuming without conceding that the claimant’s contention that his retirement is wrong on the ground that Section 208 of the CFRN 1 999 (as amended) was neither personally exercised by the Governor, nor delegated to the defendant by the Governor,  it is safe to conclude that his appointment as a permanent secretary was ineffectual, null and void and of no effect whatsoever ab initio since same was not signed by the Governor but by the chairman of the defendant.

Counsel further added that the defendant has the statutory power as enshrined in S. 8, rule 020810 (iv) (b) of the Public Service Rules 2008 Edition to retire the claimants from service after he had spent over 6 years as a permanent Secretary.

Counsel contended that the cases of NAWA V. ATT.-GEN., CROSS RIVER STATE (2008) ALL FWLR (supra) and FUT., Yola v. ASUU (supra) cited by the Counsel to the Claimant are Court of Appeal decisions which are not superior to the Supreme Court cases cited by the defendants.

Counsel also posited that the defendant is not under any duty to give reasons for compulsorily retiring the claimant and that an employee cannot be imposed on any employer because he who has the power to hire equally has the power to fire.

Counsel concluded by urging the court to resolve the issues in favour of the Defendant.

By way of reply, learned counsel to the Claimant posited in respect of the Defendant’s argument that going by Rule 020810 (iv)(b) of the Public Service Rules Revised Edition (2008) and Section 208 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that both the Governor and the Defendant have powers to retire the Claimant. Counsel argued that assuming without conceding that they do, the question is: are they concurrently exercising the powers which the law never contemplates?

Counsel reiterated the authority of NAWA v. ATT.-GEN., CROSS RIVER STATE (2008) All FWLR (Pt. 401) pg. 807 pp. 829 paras E-F to contend that the Defendant lacks the statutory power to terminate the employment of the Claimant at will.

Counsel also contended in respect of presumption of delegation that the Supreme Court faced with the same situation stated unequivocally that the person who is claiming that the authority was properly delegated must put before the court clear evidence as to the delegation of the said power. He cited the case of NATIONAL ELECTRIC POWER AUTHORITY v. J.A OSOSANYA & ORS (2004) 5 NWLR (PT. 867) 601 @ P.17, PARAS D-F.

Counsel further replied that the letter of retirement is an expropriatory exercise which tends to deprive him or divest him of his rights and such document like the retirement letter the Court in interpreting it must adopt the principle of strict construction fortissimo contra proferentes which leans in favour of the citizen which proprietary rights is sought to be deprived. He cited the cases of GUNIESS (NIG) LTD V UDEANI (2000) 14 NWLR (PT. 687) PG. 367 AT PG 389 PARAS G – H; OKOTIE-EBOH V MANAGER (2004) 18 NWLR (PT. 905) PG 242 AT PG 282 – 283 PARAS A- B and NDOMA-EGBA V CHUWUOGOR (2004) 6 NWLR (PT. 869) PG 382 at PG 410-411 PARAS D-H; PARAS C-F.

Counsel posited that in view of Exhibit A15, no mention or reference made to the Governor or the Governor exercising any of its powers under Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) therefore, the defence which is predicated on Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended and altered) and Section 8 Rule 020810 of the Public Service Rules 2008 Edition is a complete after thought and a somersault from the only reason stated in Exhibit A15.

By way of conclusion, counsel submitted that such retirement as in the instant case cannot be without reasons, being that the Claimant’s employment is one that enjoys statutory flavour and it is regulated by the civil service rules, and not one that is at the pleasure of his employer. He cited the case of IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2005) ALL FWLR (pt. 285) 431.

He urged the court to declare the purported retirement of the Claimant by the Defendant as null, void and of no effect whatsoever.

Upon a careful consideration of the questions raised in the originating summons, the affidavits and exhibits accompanying the originating summons and in opposition and from the totality of the issues raised in the written addresses in support and in opposition of the Originating Summons, the sole issue for the determination of this suit by this court is to wit:

“Whether having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and relevant provisions of the Public Service Rules 2008, the Defendant validly retired the Claimant as a permanent secretary and civil servant from the civil service of Kogi state”.

In addressing this issue, I am not unmindful of the fact that this suit borders on the interpretation of the provisions of the Constitution of Federal Republic of Nigeria 1999 (as amended) and the Public Service Rules in relation to the retirement of an employee of government who has been appointed as a permanent secretary. However, in view of the facts to which the interpretation is connected, I must foremost state that certain issues require clarification before I dwell on the provisions.

The first is to ascertain whether or not the employment in the instant suit is one with statutory flavor and if it is, then the appointment, discipline and termination must be in accordance with the regulations guiding the employment.

Authorities are abound in this regard and one of such is the holding of the Supreme Court in C.B.N. v. Igwillo (2007) 14 NWLR (Pt.1054) 393 where the court described an employment with statutory flavor thus:

“An employment is said to have a statutory flavour when the appointment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agreed to be master and servant. See Olaniyan v. Unversity of Lagos, supra; Ogunke v. National Steel Development Authority (1974) NMLR 128; Fakuade v. O.A. U.T.H. (1993) 5 NWLR (Pt.291) 47; ldeh v. University of Ilorin (1994) 3 NWLR (Pt.330) 81; Shitta-Bey v. The Federal Public Service Commission (1981) 1 S.C. 40, Imoloame.v. WAEC (1992) 9 NWLR (Pt.265) 303; and Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) 116.” Per Akintan, J.S.C. (Pp. 20-21, paras. D-A)

In more recent time, the court in COSMOS C. NNADI v. NATIONAL EAR CARE CENTRE & ANOR (2014) LPELR-22910(CA) also expoused on the meaning of an employment with statutory flavor by holding that:

“In determining what an employment with statutory flavor means, this Court and the apex Court have held several times that it relates to employment in the public or civil service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals wherein the civil service or public service rules apply or are made relevant or incorporated. See the case of Kwara State Polytechnic Ilorin v. Shittu (2012) 41 WRN 26”.

In the instant case, the Claimant by paragraph 2 of the affidavit in support of the originating summons stated that he is a civil servant in the employment of the civil service of Kogi state and at all material times occupies the position of Permanent secretary in the state civil service. The Defendant denied this fact, perhaps understandably because the Claimant had been served a letter retiring him from the said position as permanent secretary and of course as a civil servant.  The denial however, does not change the fact that the Claimant was indeed employed into the civil service as the progression of the employment from one stage to another including promotion from one grade level to another were duly exhibited. See paragraph 7 – 15 of the said affidavit which contain facts which the deponent for the Defendant states that he is not in a position to admit nor deny and Exhibits A5, A6, A7, A8, A10, A11, A12, A13 and A14.

Based on the foregoing, there is no doubt that the Claimant’s employment had statutory flavor.

The next point to make is to clearly expouse on what makes an employment with statutory flavor unique and different from other forms of employment. In KWARA STATE POLYTECHNIC, ILORIN & ANOR. VS. MR. KAMARU GBADEBO SHITTU (2012) LPELR-9843(CA) the court held that:

“I feel obliged here to reproduce, the wise dictum of my Lord, Alagoa JCA (as he then was) on the issue relating to employment with statutory flavour, in the case of N.B.T.E. VS. ANYANWU (2005) (PT.256) 1266 at 1284 when he said: “Employees who are members of the public service should have their tenure jealously guarded and all rules, regulation and procedural provisions, appertaining to them, meticulously followed. Their position therefore is not that of mere master and servant relationship. It is a position recognized as having statutory flavour. To remove a public servant in flagrant contravention of the rules governing him, whether under contract or under provisions of a statute or regulations made thereunder, is to act capriciously and to destabilize the security of tenure of the public servant, frustrate his hopes and aspirations and thereby act in a manner inimical to order, good government and wellbeing of the society. In the instant case, the Respondent’s case is one with statutory flavor or contract. The contract is specifically protected being for a permanent and pensionable public officer. (Olaniyan vs. University of Lagos (2001) FWLR (Pt. 56) 778, (1985) 2 NWLR (Pt. 9) 599, followed Shitta-Bey Vs. Fed. Public Service Commission (1981) 1 SC 40; FDSC vs. Laoye (1989) 2 NWLR (Pt. 106) 652; Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Eperokun vs. University of Lagos (1986) 6 NWLR (Pt. 34) referred to).”  Per MBABA, J.C.A(Pp. 58-59, paras. E-F) –

It is the above settled principle as expounded by the court that would serve as a guide in the interpretation to be made on the provisions in question.

That said, the questions arising from the originating summons in this suit is not one relating to the employment or appointment of the Claimant per se, but one relating to the termination of the employment of a civil servant whose employment is with statutory flavour. Such termination as settled above which must be in accordance with the regulation guiding the employment of the civil servant, in this case, the Public Service Rules vis-à-vis the Constitution.

The facts leading to the issue of termination of employment as gathered from the affidavit in support and in opposition of the originating summons is that the Claimant was on the 13th of September, 2017 served with Exhibit A15 which reads thus:

S.114/III/638                                                                13th September, 2017

Onubi Augustine E.

U.F.S

The Head of the Civil Service,

Office of the Head of Civil Service,

State Secretariat Complex,

Lokoja.

APPROVAL OF RETIREMENT FROM KOGI STATE SERVICE

I hereby convey the approval of the Civil Service Commission of your retirement as Permanent Secretary from the Civil Service of Kogi State in the Public interest, with effect from 12th September, 2017.

  1. Your retirement is in line with the provision of the Public Service Rules (PSRs) No. 04601 (2000) edition and PSR 030601 revised edition (2008).
  2. You are required accordingly to handover to the appropriate authority all the State Government property in your possession.
  3. Necessary arrangements shall be made as soon as possible to pay your retirement benefits less any indebtedness to the State Government.
  4. The State Government expresses its appreciation for your valuable contributions to the growth and development of the State during your tenure.
  5. Please accept the esteemed regards of the Commission.

(Signed)

ALH. ADO SHUAIBU

Chairman

Civil Service Commission.

In view of the above, I find that the effect of the content of the above Exhibit A15 particularly the heading which states that it is “an approval of retirement from Kogi State Service”, is simply that the Claimant had been compulsorily retired from service and that is without doubt a form of termination of employment.

What then is retirement in view of the word as stated in the said Exhibit A15? Black’s Law Dictionary, 8th Edition in page 1342, defined ‘retirement’ as:

“Voluntary termination of one’s own employment  or career, especially upon reaching a certain age”. See the case of Nawa v Att-Gen Cross Rivers State (2008) ALL FWLR (Pt. 401) 807 at 833 – 834, paras. B – C (CA).

The context of the above definition presupposes that one retires when he reaches a certain age. In the instant suit the Claimant has maintained that he has not reached the age of retirement nor served for the complete 35 years. To ascertain his age, the Claimant tendered Exhibits A1 which is his Statutory declaration of age which clearly shows that the Claimant was born on 8th March, 1962 putting his age as at the time of his retirement by the Defendant at 55 years. The Claimant also posited that he has spent 30 years in service and that is ascertainable by Exhibits A5 which is the letter of appointment issued in 1987.

In view of this, I take cognizance of the provision of rule 020810 under chapter 2, section 8 of the Public Service Rules in relation to the age for service. The said Rule provides thus:

020810 – (i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.

The said provision is given cognition in the case of COMPTROLLER ABDULLAHI B. GUSAU v. COMPTROLLER GENERAL OF CUSTOMS & ORS (2014) LPELR-23367(CA) where the court held that:

“By Chapter 2, Section 8 and paragraph 020810 (1) of the Public Service Rules, the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. This applies to the 2nd respondent by virtue of chapter 16, Section 1 paragraph 160103 and Section 4 paragraph 160401 (a) of the Public Service Rules. A statement of policy, general or otherwise, cannot overrule or wipe away specific provision of the public Service Rules especially where such policies are not written into the terms of the contract of the employee”

In view of the above, the Claimant cannot generally be retired having not attained the age of 60 nor served for 35 years. That notwithstanding, the peculiarity of the instant case is that the Claimant is not just a civil servant, in addition to that, he was also appointed as a Permanent Secretary and he was in occupation of that office when he was compulsorily retired albeit, short of his completion of 60 years of age or 35 years in service.

By virtue of his position as a Permanent Secretary, I reckon that by the provision of section 208 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Governor of a state is vested with the power to appoint and remove persons to act or hold certain offices including the office of permanent secretary.

That on the one hand, the Public Service Rules on the other hand, also provides for the due process of how a civil servant ought to be removed from office even when he is to be compulsorily retired.

This is the bone of contention attracting the quest for the interpretation of the provisions of section 208 of the constitution and other provisions of the Public Service Rules.

I shall embark on the interpretation by laying the background rule that the court stated in the case of CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294(CA) that when considering the provisions of the Constitution a court is obliged to consider the provisions as a whole. It is not enough to consider only the provisions of Section 208(1) and (2) of the 1999 Constitution see also Attorney-General, Federation vs. A. N. P. P. (2003) 15 NWLR (Pt. 844) 600.

Having said that, I find it apposite to reproduce the provision of section 208 of the Constitution of Federal Republic of Nigeria 1999 (as amended) for ease of reference and same provides thus:

 (1)Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the Governor of the state.

(2) The offices to which this section applies are, namely-

(a) Secretary to the Government of the State;

(b) Head of the Civil Service of the State;

(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State however designated; and

(d) Any office on the personal staff of the Governor.

(3) An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of any State or of the Federation

(4) In exercising his powers of appointment under this section, the Governor shall have regard to the diversity of the people within the state and the need to promote national unity.

(5) Any appointment made pursuant to paragraphs (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office:

Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the state when the Governor ceases to hold office.

In view of the above provision, while the Claimant is contending that the retirement did not comply with the Public Service Rules, the Defendant has through the deposition in opposition of the Originating summons contended that the claimant’s retirement was in line with the Constitution of the Federal Republic of Nigeria which empowers the Governor of a State of the Federation of Nigeria to appoint and remove permanent Secretary from office and that the Governor of Kogi State delegated his power to appoint and remove permanent secretaries to the defendant and the defendant acted on his behalf in removing (retiring) the claimant from office.

From the contention, the Defendant seemingly considers the words ‘retiring’ and ‘removing’ as one and the same. However, from the above provision, the word ‘retiring’ or ‘retirement’ is clearly unfound, while the word used in the provision of the Constitution is ‘remove’. As contended by Counsel to the Claimant, I find that the court in CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (supra) made a clear distinction between the words ‘retire’ and ‘remove’. The court held that:

“At this juncture, it becomes necessary to define the word “to remove”. The expression “to remove” and the word “remove” is not defined in the “Black’s Law Dictionary (with Pronunciations) 6th Edition but at page 1295 the expression” removal from office” is defined as follows: “Deprivation of office by act of competent superior acting within scope of authority. “Suspension” is the temporary forced removal from the exercise of office; “removal” is the dismissal from office”. In the same book at page 1316 the word “retirement” is defined as follows: “Termination of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed, or professional. Removal of fixed asset from service.” In the “Oxford Advanced Learner’s Dictionary, 6th Edition” page 992, the word “remove” is defined inter alia to mean: “to take something or somebody away from a place; or to make something disappear or to dismiss somebody from their position or job.” In the same page the word “removal” is defined to mean: “the act of taking somebody or something away from a particular place; or getting rid of something; or the act of dismissing somebody from their job.” At page 1005 of the same Dictionary the word “retire” is defined to mean: “to stop doing your job especially because you have reached a particular age or because you are ill/sick.” At the same page, the word “retirement” means: “the fact of stopping work because you have reached a particular age.” From the above definitions it is clear that there is a world of difference between the words “remove” and “retire” or “removal” and “retirement”… It is obvious from the definitions stated above that the word “retire” or “retirement” has a technical meaning so the issue involved is not one of mere semantics. I, therefore, conclude that the word “remove” in the context in which it is used under section 208(1) of the 1999 Constitution, does not include retirement. Therefore, the power of the Governor to remove officers stated under section 208(2) does not include the power to retire them.” Per OMOKRI, J.C.A. (Pp.35-38, Paras.A-E) –

I am duty bound to adopt the distinctions readily made by the appellate court and I hereby do same along with the conclusion made by the court that the word ‘remove’ does not mean or include to retire from service. This in essence means there are two phased issue at hand: the first is being a civil servant and the other being appointed into any of the offices or positions listed in subsection (2) (a) – (d) of section 208. The Governor does not under this provision appoint a person as civil servant but he could appoint a person who is already a civil servant into any of the offices listed and upon such appointment, he could also remove such person from that office but not as a civil servant.

In interpreting the above provision in terms of appointment, it must be reckoned that the intention of the drafters of the Constitution was made clear in view of subsection (5) which states to the effect that the persons appointed into the offices in subsection (2), paragraph (a) which is the office of the Secretary to the Government of the State and (d) which is the office of any personal staff of the Governor shall be at the pleasure of the Governor.  In this wise, it is trite that the express mention of one excludes others. The court in Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (Pt.1012) 544 held that: “It is now firmly established that in the construction of a Statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included. The latin maxim is “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. Per OGBUAGU, JSC. (Pp. 20-21, Paras. E-C). The effect of this is that a person appointed under paragraph (b) which is the head of the civil service of the State and (c) which is the Permanent secretary or other chief executive in any ministry or department of the Government of the state howsoever designated are not appointed at the pleasure of the Governor. The effect of being appointed at pleasure is also clearly stated in the provision which is that the persons occupying the offices in (a) and (d) shall cease to hold office once the Governor ceases to hold office.

Furthermore, in view of appointment of a civil servant which the claimant is one and also a permanent secretary under section 208 (2), the proviso to section 208 also deserves attention as same clearly indicates that there is a difference between being a public servant and being an appointee into the offices mentioned particularly under paragraph (a) and (d). The proviso reckons that where a person who ordinarily ought to cease to hold office upon the ceasure of the Governor to hold office under subsection (5), such person shall be entitled to return to public service of the federation or state upon the governor ceasing to hold office as such.

The power to appoint and terminate the appointment of a civil servant is provided in other parts of the Constitution as section 197 (2) establishes for state a “State Civil Service Commission” which in this case is the one for Kogi state. In connection to the establishment, the power of the Commission was stated in paragraph 2, Part II of the Third Schedule to the Constitution thus:

  1. (1) The Commission shall have power without prejudice to the powers vested in the Governor and the State Judicial Service Commission to-

(a) appoint persons to offices in the State civil service; and

(b) dismiss and exercise disciplinary control over persons holding such offices.

(2) The Commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of heads of divisions of Ministries or of departments of the Government of the State as may from time to time be designated by an order made by the Governor except after consultation with the Head of the Civil Service of the State.

The effect of the provision of sub-paragraph (1) is that the State Civil Service Commission can exercise its power to appoint persons into offices of state civil service and also dismiss and exercise disciplinary control over such person without prejudice to the power of the Governor to do same. The phrase ‘without prejudice’ under this provision was considered in the case of CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS.  (supra) where the court held that:

“In Oxford Advanced Learner’s Dictionary 6th Edition at page 916, the expression “without prejudice” is defined to mean “without affecting any other legal matter”. Also in Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 566, the Supreme Court per Oputa, JSC, said “without prejudice” means “not waiving or detracting from”. Therefore, the expression “without prejudice” to the powers vested on the Governor simply means that no rights or privileges of the Governor are to be considered as thereby waived or lost except in so far as may be expressly conceded by him.” Per OMOKRI, J.C.A. (Pp.41-42, Paras.G-C).

It is clear from these provisions that the Defendant in the instant case is also constitutionally quoted with power to appoint and dismiss. The question however is how does the defendant exercise that power. In other words, what is the procedure for the dismissal where such is the case. In the instant case, it is a case of compulsory retirement. There is no gainsaying that the procedure for retirement of a civil servant is regulated by the Public Service Rules and the Defendant stated in Exhibit A15 that the retirement is “in line with Public Service Rules (PSRs) No.04601 (2000) edition and PSR No.030601 revised edition (2008)”.

I shall return to address the retirement under the Public Service Rules, however, I am inclined to conclude on whether the Governor has indeed validly ‘removed’ the Claimant from service considering the fact that he was a permanent secretary and considering the retirement letter served on him. In this wise, I must state that this instant case is to a large extent similar to that in CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (supra).

In the said case, the Governor compulsorily retired a permanent secretary who was yet to attain the age of 60 and yet to complete 35 years in service and the court considered the provision of section 208 of the Constitution of Federal Republic of Nigeria 1999 in other to determine whether the removal was valid or not.  The Court of Appeal held that:

”Section 208(5) of the 1999 Constitution provides that any appointment made pursuant to subsection 2(a) and (d) shall be at the pleasure of the governor and shall cease when the governor ceases to hold office. The officers affected are:

(a) Secretary to the government of the State;
(d) any office on the personal staff of the Governor.”
The officers under section 208 2(b) and (c) are:
“(b) the Head of Service of the State;
(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated.
Now, it is clear that the Head of Service of the State and Permanent Secretary (which includes the appellant) or other chief executive as aforesaid are persons who have been appointed from the public service of the Cross River State and they do not hold their tenure of office at the pleasure of the Governor and are entitled to return to the public service of the State when the Governor ceases to hold office. Bearing the above in mind it is clear that if for whatever reason the appellant is removed from office as Permanent Secretary by the Governor, he should be returned to the public service of the State in any other capacity, in any Ministry or Department of the Cross River State.” Per OMOKRI, J.C.A. (Pp.35-38, Paras.A-E)

Going by the analysis made by this court on the provision of section 208 above and also the holding the court in the case above, assuming the Governor of Kogi state indeed directed the retirement of the Claimant, same would be considered void as the removal of the Claimant as a permanent secretary under section 208 does not automatically amount to retirement from service.

The words of the provision are clear and unambiguous and the court must stop at that. The court in this regard held in the case of NDIC v. Vibelko Nig. Ltd. (2006) ALL FWLR (Pt. 336) 386 at 400 (CA) that:

“The main object is to discover the intention of the lawmaker which is deducible from the language used. Once the language of a statute is clear and unambiguous, the court will give an ordinary or literal interpretation to it. The literal interpretation is to be followed unless that would lead to an absurdity and inconsistency with the provisions of the statute as a whole. The court of law must stop where the statute stops in the exercise of its interpretative jurisdiction”.

Consequently, it must be categorically stated that upon the above authorities, the provision of section 208 of the Constitution does not amount to a provision for retirement of a civil servant. Therefore, the Claimant’s premature retirement cannot be predicated upon the provision of section 208 as contended by counsel to the Defendant.

Having said that, it is inconsequential whether or not the Governor delegated the power to retire the Claimant or not. For whatever the Governor himself lacks the power to do, he cannot do through the instrumentality of another. In the words of Lord Denning in UAC Ltd v McFoy (1961) 3 All ER 1169 at 1172

“any purported exercise of any function being without any legal or constitutional authority was null and void and of no effect … if an act is void, then it is in law a nullity. It is not only bad but incurably bad. You cannot place something on nothing and expect it to stay there, it will collapse”.

In view of the content of Exhibit A15, it is prima facie crystal clear that the Governor of Kogi state has not exercised the power to remove the Claimant as Permanent Secretary at all as the direction for such removal was not made by the Governor.

In further view of the Provision of section 197 and Part II, Third Schedule to the Constitution which empowers the Defendant to appoint and dismiss the Claimant being a civil servant and the contention that the provision of the Public Service Rules on age of retirement or years of service admits exceptions, I then pay attention to the content of Exhibit A15 and the provision of the Public Service Rule.

It is not in doubt that the Claimant has not attained the age of 60 nor served for 35 years, however, counsel to the Defendant has contended that the defendant has the statutory power as enshrined in S. 8, rule 020810 (iv) (b) of the Public Service Rules 2008 Edition to retire the claimant from service after he had spent over 6 years as a permanent Secretary.

This contention is what makes this suit distinguishable from the case of CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (supra). In the cited case, the Appellant was only 4 months in office as permanent secretary before he was retired. In the instant case, the Claimant according to Exhibit A14 was appointed as permanent secretary on the 3rd of January, 2013 while he was retired on the 13th of September, 2017 making it his fifth year in office.

It is upon this fact that the counsel to the Defendant contended that the Claimant can no longer be in service owing to the exception in Section 8, Rule 020810 (iv) (a) & (b) of the Public Service Rules, 2008 which provides thus:

(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 the satisfactory performance, and no more.

The consideration of the above provision would determine whether or not the Claimant’s employments subsists in the civil service.

The Claimant in the context of the provision falls under paragraph (b) and the paragraph is to be read along with sub-rule (iv) the import of which would mean that the as long as an officer has not attained the age of 60 and has not served for 35 years, he can hold office for a period of 4 years and renewable for a further 4 years but no more subject to satisfactory performance.

The question is whether the above provision is intended to at any point in time compulsorily retire an officer before the age of 60 or 35 years in service, whichever is earlier. Applying the literal rule of interpretation, it is apparent that paragraph (a) specifically mentions, with regards to an officer who is a director, that such officer upon serving for eight years shall compulsorily retire. This is clearly different from the provision in paragraph (b) which merely stipulates that the permanent secretary shall hold office for 4 years and renewable for another 4 years. However, where the person then attains the age of 60 or completes his 35 years of service before the either of the 4 years is complete, then the person has to retire.

The import of the above is that upon serving as permanent secretary or even when the officer is removed from office as permanent secretary, if he is yet to attain the age of 60 or serve for 35 years, then he is still to remain as a civil servant. The consequence of his remaining in service cannot be averted by this court as the court in AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 SC; (2008) LPELR – 446 (SC) noted that:

“It is certainly not the duty of a Judge to interpret a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct, engaged himself in morality which may be against the tenor of the statute and therefore not within his Judicial power”. Per MOHAMMED, JSC.

It must be borne in mind that the procedure for terminating the employment of a civil servant is sacrosanct and the reason must be provided as against the master- servant employment where an employee may not be given reason. In the light of this, the court in CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS.(supra) held that:

“Permanent Secretaries (such as the appellant) are not like Commissioners, Special Advisers, Chairpersons or members of Statutory commissions and agencies. They are civil servants. The provisions of section 208 undoubtedly gave power to the Governor to appoint persons to hold or act in the offices to which the section apply and to remove person so appointed from any such office, but it did not stipulate the mode or procedure by which the power is to be exercised. In the case of political appointees they hold offices at the pleasure of the Governor but the same situation cannot apply to civil servants. In respect of the civil servants the legislation regulating the manner in which the power to appoint or to remove is to be exercised is to be found in the Civil Service Rules and Regulations”

The court also stated that:

“Though, the Governor of a State has the power to appoint civil servants he cannot remove such civil servants without following due process stated in the Civil Service Rules and Regulations. If the Governor wants to retire a civil servant for a just cause then he must make a recommendation to that effect to the Civil Service Commission of the State which will do so in compliance with the law. Clearly it is not the intention of the legislator, that under section 208(1) of the 1999 Constitution, a Governor can just retire a Permanent Secretary without any just cause. It is important to say that the days when public or civil servants are retired with immediate effect without stating any reason and in flagrant violation of the law, as it was under the Military regime, is now dead, buried and gone forever. In a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. See sections 197, 202 and Part II paragraph 2(2) of the 3rd Schedule to the 1999 Constitution. Presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power. See F. C. S. C. vs. Laoye (supra) and Aiyetan vs. N. I. F. O. R. (supra)”.

In the light of the above, a look at Exhibit A15 clearly shows that no reason was provided for the retirement of the Claimant. It was even deposed to in the counter affidavit that the defendant need not give any explanation for the retirement of the claimant. It is from the written address that counsel to the Defendant made it an afterthought to contend that the reason for the retirement of the Claimant was because he had served as permanent secretary for 4 years.

In addition, Exhibit A15 also stated that the retirement of the Claimant was in line with Rule 030601. I have recourse to reproduce the said rule which states that:

030601 – Notwithstanding the provisions of this Chapter, if the Federal Civil Service Commission considers that it is desirable in the Public interest that an officer should be required to retire from Service on grounds which cannot suitably be dealt with by the procedures laid down in Rule 030305, it shall call for a full report from the Permanent Secretary/Head of Extra Ministerial Office in which the officer has served; and if, considering that report and giving the officer an opportunity of submitting a reply to the complaints by reason of which his/her retirement is contemplated, the Commission is satisfied, having regard to the conditions of service, the usefulness of the officer thereto and all other circumstances of the case, that it is desirable in the public interest to do so, it shall retire the officer and the officer’s service shall accordingly terminate on such date as the Commission may specify. In every such case, the question of pension and gratuity will be dealt with under the Pensions Reform Act, 2004.

With regards to this provision under which the retirement of the Claimant was predicted as clearly stated in Exhibit A15, counsel to the Claimant contended that the procedure stipulated in the said provision was not complied with and same is therefore null and void.

In resolving this contention, I must state that the Defendant did not annex any exhibit in support of their counter affidavit, therefore there is nothing before this court to show that any report was called for or that the Claimant was given any opportunity of submitting a reply to a complaint. Worse still, Exhibit A15 did not state that the retirement was based on public interest.

The above provision of the Rule is clear and unambiguous and does not admit of any arbitrariness. The procedure clearly spelt out in Rule 030601 was not complied with. Consequently, the sole issue is accordingly resolved in favour of the Claimant to the effect that having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the relevant Provisions of the Public Service Rules 2008, the Defendant invalidly retired the Claimant as a permanent secretary and civil servant from the civil service of Kogi state.

In view of the resolution of the sole issue, I turn to answer the questions for the determination of this originating summons to wit:

Question one is answered in the negative to the effect that having regard to Section 208 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Defendant herein does not have statutory authority to retire the Claimant from the Civil Service of Kogi State without complying with the Due process of Law.

While question two is answered to the effect that the Defendant have failed to comply with the Public Service Rules 2008 Edition in retiring the Claimant from the Civil Service of Kogi State having not served for 35 years or attained 60 years of age.

Upon the above determination, I shall then consider the reliefs sought by the Claimant.

With regards to relief one, which is a declaratory relief, seeking for “A DECLARATION that the appointment of the Claimant in the Civil Service of Kogi State is still valid, extant and subsisting” the claimant has on the strength of his own case proved that he has not attained the age of sixty and has not served for 35 years, hence is not due for compulsory retirement under Rule 020810 of the Public Service Rules and consequently is entitled to the declaration that his appointment subsists. Consequently, relief one is granted as prayed.

Relief two is also a declaratory relief seeking for “A DECLARATION that the appointment of the Claimant as Permanent Secretary in the Civil Service of Kogi State which was made by the Defendant vide its letter of 3rd January, 2013 is still extant and subsisting”. In determining whether or not this relief can be granted, I must state that I am not unmindful of the provision of Rule 020810 (iv) (b) of the Public Service Rules which stipulates two term of four years for a permanent secretary and the provision stating that the second term shall be renewable, apparently after the first, for a further term subject to satisfactory performance. In the instant case, the Claimant was on his fifth year as permanent secretary as at the time of the compulsory retirement but has not presented evidence of a renewal after the first four years. The suit before this court is however not on whether the tenure was extended or not but rather on the compulsory retirement of the Claimant. Based on the foregoing, I reckon that the law has no room for speculation and does not rely on it and the court is to restrict itself to what has clearly transpired between the parties as established by cogent and reliable evidence.See Onuigwe v. Emelumba (2008) 9 NWLR (Pt.1092) 371 at 411, paras. E-F (CA). Hence, going by Exhibit A15, which was intended to retire the Claimant from service and not specifically to remove him as a permanent secretary and same having been considered invalid in view of the fact that the Claimant has not attained the age of 60 nor served for 35 years, I have no hesitation in granting the said relief two as prayed and same is accordingly granted.

Relief three, which is for “A DECLARATION that the letter of approval of retirement from Kogi State Service with Ref. No. S.114/III/638 dated 13th September 2017 by which the Defendant purportedly retired the Claimant from Kogi State Civil Service is ineffectual, null and void and of no effect whatsoever”, the said letter is Exhibit A15 that conveyed the compulsory retirement of the Claimant which has been considered to be invalid. I therefore have no hesitation in granting the relief and same is granted as prayed.

Reliefs four and six are orders sought consequent upon the declaration made in relief three and same are accordingly granted, they are:

  1. AN ORDER setting aside the letter of approval of retirement from Kogi State Service with Ref. No. S.114/III/638 dated 13thSeptember 2017 issued by the Defendant and served on the Claimant.
  2. AN ORDER directing forthwith the Defendant, its servants, agents, privies, officers howsoever described to continue to recognize and accord due regard to the Claimant’s position as Permanent Secretary in the Kogi State Civil Service with full benefits, salary and emoluments.

Relief five is an order for reinstatement while relief seven is for payment of arrears of salaries, benefits and emoluments. With regards to reinstatement, the court in Gov. Kwara State v. Ojibara (2007) ALL FWLR (Pt. 348) 864 at 878-879 Paras. H – B (SC) described it thus:

“Reinstatement involves putting the specified person back in law and in fact in the same position as he occupied in the undertaking before the employer terminated his employment. The natural and primary meaning of to ‘reinstate’ as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante before the dismissal. Shitta-Bey v.Federal Public Service Commission (1981)1 S.C.26; Hodge v. Ultra Electric Ltd (1943) 1 KB 462; William Dixon Ltd v. Patterson (1943) SC (J) 78; Olaniyan v. University of Lagos [No. 2] (1985) 2 NWLR (Pt. 9) 559.” Per Oguntade, J.S.C.

It must be noted that once it is found that the retirement is invalid, null and void and of no effect, the court can make an order of reinstatement even where same is not sought. The court in the case of KWARA POLY & ORS. v. OYEBANJI (2007) LPELR-11829(CA) held that:

“The trial court having found that he was wrongfully retired, even without asking, the court could order reinstatement as a consequence of the setting aside of the wrongful retirement. I am supported in the view above expressed by the recent decision of the Supreme Court in IDERIMA VS. RIVERS STATE CIVIL SERVICE COMMISSION (2005) ALL FWLR (Pt. 285) 431 which followed the locus classicus of HART VS. MILITARY GOVERNOR OF RIVERS STATE (1976) NSCC (VOL. 10) 222, SHITTA-BEY VS. THE FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C. 26 (reprint) AT 35 – 36.

With regards to payment of arrears of salaries, the court in Ekeagwu v. Nigerian Army (2010) 16 NWLR 419 held that:

“I am, however, not unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, …upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable.” Per ONNOGHEN, J.S.C.

Consequently, relief five which is “AN ORDER reinstating the Claimant to his current position as Permanent Secretary in the Kogi State Civil Service forthwith with full benefits, salary and emoluments” is granted as prayed while relief seven is granted to the effect that this court makes “AN ORDER directing the Defendant, its servants, agents, privies, officers however described to effect payment of all arrears of salaries, benefits and emoluments due and or accruable to the Claimant from September 2017 to date, such payment shall be made within 60 days of this judgment.

Relief eight is an injunctive relief in the way it is couched. The relief reads: “AN ORDER restraining the Defendant either by itself or its servants, agents, privies, officers, authorities, bodies or any other persons howsoever described from interfering, disturbing or howsoever tampering with the Claimant’s appointment in the Civil Service of Kogi State and or his appointment as Permanent Secretary in the said Service until he retires in line with extant laws, civil service rules and other applicable regulations”.

The Supreme Court in BABATUNDE ADENUGA & 5 ORS. V. K. ODUNEWU & ORS. (2001) 2 NWLR (PT.696) 184 at 195 with regards to injunctive relief stated that:

“An injunction is an equitable order restraining the person to whom it is directed from doing the things specified in the order or requiring in exceptional situations the performance of a specified act. A claim for an injunction is a claim in equity. per Karibi-Whyte, JSC.

The effect of the above relief would be to restrain the Defendant, a body established under the Constitution, from having to exercise its power under the Constitution in lawful circumstance in relation to the employment of the Claimant. The injunctive relief is needless in the circumstance having determined that the retirement of the Claimant was invalid and a reinstatement of the Claimant ordered. Consequently, relief eight is hereby refused.

Judgment is accordingly entered.

I make no order as to cost.

……………………………………………

Hon. Justice Z.M. Bashir

Judge

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