CONTROLLER GENERAL OF CUSTOMS vs. CONTROLLER ABDULLAHI B. GUSAU (2017)

CONTROLLER GENERAL OF CUSTOMS vs. CONTROLLER ABDULLAHI B. GUSAU

(2017) LCN/4546(SC)

In the Supreme Court of Nigeria

Tuesday, March 7, 2017


Case Number: SC. 491/2014

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN

MUSA DATTIJO MUHAMMAD

KUDIRAT MOTONMORI OLATOKUNBO KEKEKE-EKUN

EJEMBI EKO

SIDI DAUDA BAGE

 

APPELLANTS

1. CONTROLLER GENERAL OF CUSTOMS2. NIGERIA CUSTOMS SERVICE3. HON. MINISTER OF FINANCE4. NIGERIA CUSTOMS SERVICE BOARD

RESPONDENTS

CONTROLLER ABDULLAHI B. GUSAU

 

 

 

 

RATIO

DUTY OF A JUDGE

“When a Judge is faced with construction, interpretation and application of a statutory provision to the facts ascertain by him in a case, he must:- (a)    Read the statute to ascertain whether and how its meaning relates to the case in controversy; (b)    If the language i.e. the words or meaning ascertained from that language resolves the controversy, the injury terminates there; (c)    But if the language or meaning does not resolve the controversy then the judge must adjust and apply an appropriate Judicial Rule to decide and resolve the case or the issue in controversy.”

RULING
(DELIVERED BY SIDI DAUDA BAGE, JSC.)
I have had a preview of the Lead Judgment delivered by my learned brother Eko, JSC, and I agree with him that the Appeal lacks merit. I will add a few words of my own in total support.
This Court has done a marvelous work on the Court’s duty when faced with construction of a statutory provision to ascertained fact. See ADEWUMI & ANOR VS ATTORNEY-GENERAL OF EKITI STATE (2002) 2 NWLR (Pt.751) 474 at 511. Per Wali JSC (as he then was). He stated as follows :-
“When a Judge is faced with construction, interpretation and application of a statutory provision to the facts ascertain by him in a case, he must:-
(a) Read the statute to ascertain whether and how its meaning relates to the case in controversy;
(b) If the language i.e. the words or meaning ascertained from that language resolves the controversy, the injury terminates there;
(c) But if the language or meaning does not resolve the controversy then the judge must adjust and apply an appropriate Judicial Rule to decide and resolve the case or the issue in controversy.”
The Lead Judgment aptly discharged that duty in its construction to the Provisions of Section 9 of the Nigerian Customs Sendee Act, 2004, on one hand, and the role of the Public Service of the Federation as contained in item 53 of the Exclusive Legislative List contained in Part 1 of the second schedule to the 1999 Constitution on the other hand. The said Exclusive Legislative List is drawn pursuant to Section 4(2) of the Constitution of Federal Republic of Nigeria. By the combined provisions of Sections 153(l)(d) to 159(1), and 160(1) of the Constitution of the Federal Republic of Nigeria, the Federal Civil Service Commission may, with the approval of the President make rules to “regulate its own procedure or confer power and impose duties on any power or authority for the purpose of discharging its functions,” which are expressly stated in paragraph 11 of the Third schedule to the Constitution. The statement of policy, general or otherwise by the Nigerian Customs Service Board, the 4th Appellant, cannot overrule or wipe away the specific Provisions of the Public Service Rules made by the Federal Civil Service Commission which are written into the terms of Pensionable Contract of an Officer in the Public Service.
It is for this and other reasons in the Lead Judgment that I also dismiss the Appeal, affirm the decision of the Court below, and abide by the Order as to costs contained in the Lead Judgment.

{Delivered by Walter Samuel Nkanu Onnoghen, CJN)
I have had the benefit of reading in draft the lead judgment of my learned brother, BAGE, JSC just delivered.

I agree with his reasoning and conclusion that the appeal has merit and should be allowed.

I hereby order accordingly and abide by the consequential orders made in the said lead judgment including the order as to costs.

Appeal allowed.

(Delivered by MUSA DATTIJO MUHAMMAD, JSC)
I had the privilege of reading in draft the lead judgment of my brother Ejembi Eko JSC just delivered. I agree entirely with his reasoning and conclusion that the appeal lacks merit and that it be dismissed.
It has become trite that employments that have statutory flovour can only be terminated in the manner allowed by the very statutes that provided for them. See Kunle Osisanya V. AfriBank Nigeria Plc (2007) 6 NWLR (Pt 1031) 555 and Bamgboye V. University of Ilorin (19990 LPELR-737 (SC).
The respondent had approached the trial court asserting that he was prematurely retired by the appellants notwithstanding the fact that the Public Service Rules had provided in Section 8 thereof that:-
“he can only be compulsorily retired on the attainment of sixty years or thirty five years of pensionable service, whichever happens first. ”

His case is that at the time of his purported retirement by the appellants neither event had occurred. Inspite of the trial court’s profound finding at page 561 of the record of appeal in respondent’s favour, the court found no merit in his claim and dismissed same. The lower court, at page 778-779 of the record, affirmed the trial court’s finding and proceeded to find for the respondent.
The appellants have argued that the lower court is wrong in reinstating the respondent having found his retirement by the appellants in clear breach of the Public Service Rules that provided for it. I disagree.
The law on the point must be restated thus:- where a statute clearly provided for the employment and discipline including an employee’s retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E.P. Iderima V. Rivers State Civil Service Commission (2005) LPELR-1420 (SC). In Chief Tamunoemi Idoniboye-Obu V. Nigerian National Petroleum Corporation (2003) LPELR-1426 (SC) this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the rules must be established to be:-
(1) regarded as mandatory.
(2) directly applicable to him or persons of his cadre.
(3) intended for the protection of the employment.
(4) breached in the course of determining the employment.

In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower court’s decision in this regard is beyond reproach.
It is for the foregoing and more so the fuller reasons contained in the lead judgment that l also dismiss the unmeritorious appeal. I abide by the consequential orders including the order on costs made in the lead judgment.

DELIVERED BY WALTER SAMUEL NKANU ONNOGHEN, CJN)

I have had the benefit of reading in draft the lead Judgment of my learned brother EJEMBI EKO JSC just delivered.
I agree with his reasoning and conclusion that the appeal is devoid of merit and should consequently be dismissed. I therefore order accordingly and affirm the Judgment of the lower court.
Appeal dismissed.

(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO
KEKERE-EKUN, JSC)
My learned brother, Ejembi Eko, JSC obliged me with a copy of the judgment just delivered. His Lordship has exhaustively considered and ably resolved the issues in contention in this appeal. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.

The sole issue for determination in this appeal is whether the learned Justices of the lower court were right in setting aside the judgment of the High Court of the Federal Capital Territory and ordering the respondents reinstatement in the service of the Nigeria Customs.
The respondent herein and one other instituted an action by a writ of summons and statement of claim filed on 25/2/2011 before the Federal High Court, FCT Judicial Division to challenge their premature retirement from the Nigeria Customs Service on 21st December 2009 in a manner that was not in compliance with the provisions of Public Service Rules, which governed their employment. The appellants, on the other hand, contended that the respondent’s retirement was pursuant to the Policy Guidelines on Customs Service Reform whereby an officer could be removed for the following reasons:
a) Not making effective and positive contributions.
b) Declining productivity after many years in service.
c) Pending disciplinary cases against an officer.
d) Advanced age.

e) Officers who have served for extended periods of time on the same grade may be disengaged to allow for the innovative potentials of young and hardworking officers, (see pages 710 – 711 of the record).

It was the appellants’ contention that the respondent and other Comptrollers had served between 10 and 21 years on the same rank and were therefore properly retired pursuant to sub-paragraph (e) above.
The respondent transferred his services to the Nigeria Customs Service in 1991 after spending 9 years in the service of Sokoto State Government. He rose to the position of Comptroller of Customs on GL 15 with effect from 01/01/2000.
There are three categories of contracts of employment. They are:
(a) Purely master and servant relationship.
(b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavour.
See: Longe Vs F.B.N, Plc (2010) 6 NWLR (Pt. 1189) 1.

An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame Vs W.A.E.C. (1992) NWLR (Pt.265) 303; Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599: Shitta-Bey Vs Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory flavour.
The law is settled 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. See: Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt.622) 290; Olatunbosun Vs N.I.S.E.R. Council (19881 3 NWLR fPt.80) 25; Longe Vs F.B.N, (supra).

Chapter 2 Section 8 paragraph 020810(i) of the Public Service Rules provides:

“The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier”
It is pertinent to note that there was a positive finding of the trial court at page 561 of the record, after a forensic examination of the pleadings and documentary evidence before
it, as follows:
“Both Exhibits 11 and 19 showed the 2nd plaintiffs date of birth to be 1956. So the issue of his date of birth is not in contention. I therefore agree with the 2nd plaintiff that his date of retirement by age is 19th December 2016 and by years of service to be 9th September 2018. It is clear therefore that his retirement in 2010 was premature.”
The 2nd plaintiff referred to is the present respondent. It is pertinent to note that there is no appeal against the finding as to the respondent’s date of retirement either by age or years of service. The finding is therefore binding on the parties.
Notwithstanding this finding, the trial court relied on Policy Guidelines and Paragraph 3 of Exhibit 1 to hold that since he was promoted to the rank of Comptroller with effect from 15th June, 2000 he had served in that rank for more than 10 years and was properly retired from service in December 2009 and dismissed the suit.
I am in complete agreement with my learned brother, Ejembi Eko, JSC that the appellant’s Policy Guidelines on Nigeria Customs Reform do not qualify as a subsidiary legislation. The guidelines are subordinate to and cannot override the statutory provisions of the Public Service Rules.
Besides, Section 4 of paragraph 160401(a) of the Public Service Rules provides that the provisions of Section 8 in Chapter 2 of the Public Service on leaving the service shall apply to all Parastatals, as contained in each parastatal’s conditions of service. The Nigeria Customs Service is one of such parastatals.

The court below at pages 779, 780 – 781 of the record held:
“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, as in the instant case. I agree with appellant’s counsel that a decision of court based solely on policy as in this instance, leads to uncertainly in the law.
…………………
The appellant’s employment had statutory flavour and so he did not hold office at the pleasure of the 2nd respondent. His premature retirement was therefore unlawful, null and void. He is entitled to be re-instated in the service.”
The above finding is unassailable. The respondent’s retirement date by virtue of attaining 60 years of age, which was not in dispute was 19th December 2016. I find no reason to interfere with the sound reasoning.
For these and the more comprehensive reasons well adumbrated in the lead judgment, I hold that this appeal is devoid of merit. It is accordingly dismissed. I abide by the orders made in the lead judgment including the order for costs.

C.I. OKPOKO ESQ. Asst. Director, Federal Ministry of Justice for the Appellant with H.U. Chime (Mrs.), Asst. Chief State Counsel; R.M. Shittu (Mrs.), Principal State Counsel and
U. Ekwerre-Bello (Mrs.), Senior State Counsel.

G.T. AFOLABI ESQ. for the Respondent.

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