| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
——————————————————– Suit No: NICN/OW/104/2014 Petitioner: David Onyeike And Respondent: Governor of Abia ANOR Date Delivered: 2017-05-24 Judge(s): HON. JUSTICE O. Y. ANUWE Judgment Delivered Representation: U. T. Nwachukwu for the Claimant C. Ogwo, Assistant Chief State Counsel, Ministry of Justice, Abia State, with him, N. C. Ogwuagwu, Senior State Counsel, for the Defendants JUDGMENT This action was commenced by Complaint dated and filed the 27th day of July 2014. By an amended complaint filed on the 23rd day of November 2015, the Claimant claimed against the Defendants as follows: 1. A declaration that the Claimant is still in the employment of the Government of Abia State by virtue of the Establishment Circular No. HAS/EST/RR/222/16 of September 10, 2014 and that the refusal or neglect of the Defendants to re-instate him is wrongful illegal and unlawful. 2. A declaration that the purported retirement of the Claimant pursuant to the Abia State Circular No. HAS/S.0074/11/91 of August 1, 2011 is null and void having been superseded, abrogated modified or amended by Circular No. HAS/EST/RR/222/16 of September 10, 2014. 3. A declaration that the publication of circular No. HAS/EST/RR/220/20 of April 16th 2015 and HAS/EST/RR/224/4 of April 21st 2015 when this matter is subjudice is unjust, unlawful, unconstitutional and discriminatory, traverses equity and is contrary to public policy. 4. A declaration that publication of circulars Nos. HAS/EST/RR/222/20 of April 16th 2015 and HAS/EST/RR/224/4 of April 21st 2015, HAS/S.0074/11/91 dated 1st August 2011, HAS/EST/RR/222/16 dated September 10th 2014, ending in HAS/EST/RR/224/4 of April 21st 2015 without negotiation or consultation with the Claimant is a breach of the Claimant’s right to fair hearing guaranteed under the 1999 constitution. OR IN THE ALERNATIVE 5. An Order directing the Defendants to pay the Claimant his full salary of the sum of N352,000.00 (Three Hundred and Fifty Two Thousand Naira) as director from the 1st day of January, 2012 till his statutory retirement age of 35 years or 60 years. 6. A declaration that the Claimant is entitled to 100% computation of his gratuity as Director on Salary Grade Level 17 Step 9. 7. A declaration that the Claimant is also entitled to 100% computation of his Monthly Pension as Director on Salary Grade Level 17 Step 9. 8. A declaration that the Claimant is entitled to be paid his Severance Allowance of 300% of his annual salary for the premature termination of his career and service and for loss of expectation. The amended Complaint was accompanied with the amended Statement of Facts, Claimant’s Written Statement on Oath, List of Witnesses, List of Documents and copies of documents to be relied upon at the trial. The Defendant’s Statement of Defence was filed on the 26th day of January 2016. This was accompanied with the Written Statement on oath of the Defence Witness, List of Witnesses, List of Documents and copies of documents to be relied upon at the trial. These were duly regularized on 29/4/2016. In the interim, preliminary applications were taken and resolved. Hearing commenced on the 7th day of March 2016. The Claimant testified for himself as CW1, while Mrs. Ijeoma M. Egesie, the Acting Director of Administration at the Abia State Ministry of Justice testified for the Defendant as DW1. Hearing was concluded on the 11th day of January 2017 and parties were ordered to file their final written addresses in accordance with the rules of court. The Defendants’ final address was filed on the 22nd day of February 2017. The final written address of the Claimant was filed on the 28th day of February 2017. Parties adopted their respective written addresses on the 16th day of March 2017. In the Defendants’ final written address, counsel formulated two alternative issues for the determination of the court: • Whether the Claimant is estopped from filing this action, after communicating a voluntary letter of appointment. AND IN THE ALTERNATIVE • Whether the Abia State Public Service Rules (2001) was amended by circular No. HAS/S.0074/II/91 of 1st August, 2011 on the strength of the preamble of the Abia State Public Service rules (2001) and whether the Pensions Act which had been abolished by the Pension Reform Act (2004) was ever applicable to the Claimant or was the Public Service Rules alongside amending circulars, the only applicable Rules governing the relationship of the Claimant with the Defendants. In arguing the first issue whether the Claimant is estopped from filing this action after communicating a voluntary letter of retirement to the Head of Service which was dated 5th September, 2012 and approved by the Head of Service of a letter dated 17th October, 2012, counsel referred to Section 169 of the Evidence Act which provides that: When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing. According to counsel, the Claimant by a letter dated 17th October 2012, which is an exhibit before the court, had applied for his voluntary retirement, which was duly approved. Counsel referred the court to the words of Justice Ogundare in the case of Faponle vs. University of Ilorin Teaching Hospital Board Management (1991) 4 NWLR (Pt. 183) 43 at 53, where he stated thus: In this case, it is the appellant who was vigorously by litigation, letters and conduct, approbating and reprobating. In one breadth, he says he retires, in a hotter breadth he files an action to compel the respondent to give effect to his retirement and most surprisingly, in yet another breadth, he brings an action that he should be reinstated. Elelu-Habeeb’s dictum that the appellant was playing a game of chances with his career is most apt. In contrast, the respondent had taken steps as permitted by Section 9 of Decree No.10 of 1985 to discipline him, and did dismiss him for gross misconduct which he resisted and blocked by litigation; he thereafter gave notice of retirement which he purported to withdraw and the which the respondent approved, albeit on the expiry of the notice. Coker, C.J.N in Agboola vs. Abimbola (1969) 6 NSCC 263 at 269, stated thus; Estoppels by deed is a rule of evidence founded on the principle that a solemn and unambiguous statement or engagement in a deed must be taken as binding between parties and privies and therefore not admitting any contradictory proof…. it is clear therefore that as between the parties to the document exhibit D there is estoppel in pais and it is inconceivable to suggest that a party is not estopped. The Chief Oloto did not deny his execution of exhibit D. According to counsel, by the pleading in paragraph 5 (vi) of the Statement of Defence and paragraph 10 of the Statement of Oath of the Defendants, which was not denied by any reply, it is not in dispute that there was a voluntary express notice of retirement by the Claimant, which was accepted by the Defendants. The Claimant is estopped after two years of such a notice, to institute this action. There cannot be a question of coercion. See Oliserv Ltd. vs. L.A. I & Co (Nigeria) Limited (2008) 2 NWLR (Pt. 1070) 191 at 209 paragraphs A-B. In arguing issue two, counsel submitted that the applicable law governing pension and years of Service in Abia State is not the Pension Act, Cap 346, Laws of the Federation (1990) but the Public Service Rules, 2001 alongside amending circulars. In the 2004 Pension Reform Act, years of service for the Public Service was not strictly mentioned. It has also be acknowledged by the Court in Abdullahi vs. Military Administrator, Kaduna State (2004) 5 NWLR (Pt. 866) 232 – 254 and subsequently by the Supreme Court in Abdullahi vs. Military Administrator & 5 ors (2009) 39 NSCQR 1 at 32-33, paragraphs, H-A, (2009) 15 NWLR (Pt. 1165) 417 SC thus: The Pensions Act in it’s introductory reads thus: “An Act to consolidate all enactments dealing with Pensions, war pensions and disability benefits for civilian employees in the Public Service of the Federation.” This shows clearly that the Act applies to civilian employees of the Public Service of the Federation and not to employees of the Kaduna State Public Service from which the appellant retired. This meant that the appellant was pushing tor the interpretation of a law which did not apply to him. There to, by a combined reading of the Abia State Public Service Rules particularly the preamble, which states thus; The Abia State Public Service Rules should be read in conjunction with circular instructions and Gazette Notices on the same subject issued on or after 1st January, 2001. By the publication of circular HAS/S.0074/11/91 of August 1, 2011, the terms of office of Abia State Servant was amended to thus: That Permanent Secretaries and Heads of Non-Ministerial Departments shall hold office for a term of Four (4) years, renewal for a further term of Four (4) years, subject to satisfactory performance and no more. Directors shall compulsorily retire upon serving eight (8) years on the post. This approval is without prejudice to the relevant provisions of the Public Service Rules which prescribe to the relevant Public Service Rules which prescribe sixty (60) years of age and or/thirty five (35) years of service for mandatory retirement. Consequently, all serving Permanent Secretaries, Heads of Non-ministerial Departments and Directors who would have spent Eight (8) years or more on the post by December, 2011, the effective date of this provision, are hereby notified for the purpose of commencing their pre-retirement activities, when due. Due to the above, according to counsel, the retirement of the Claimant was lawful and not discriminatory. Counsel therefore urged the court to dismiss the claim of the Claimant, his retirement being in compliance with the Abia State Public Service Rules (2001) and the relevant amending circular HAS/S.0074/II/91 dated August 1, 2011. He urged the Court to dismiss this Claim. In the Claimant’s final written address, the Claimant summarized the facts thus: The Claimant was employed by the Abia State Civil Service as a State Counsel. He rose to the rank of a Director. In 2011, he was compulsorily retired based on Government’s new policy to retire Civil Servants who have put in eight years as Directors. The circular conveying the policy was amended and the Claimant requested his reinstatement based on the amendment. The Defendants refused to reinstate hence this suit. The following 7 issues were then formulated in the Claimant’s written address, for the determination of the court: 1. Whether the Claimant is estopped from challenging his retirement in this suit. 2. Whether the applicable laws to this suit are the Pension’s Act, the Pension’s Board Law of Abia State, the Law Officers (Harmonization with Magistrates) Law No. 3 of 2008 of Abia State and the Public Service Rules of Abia State. 3. Whether the retirement of the Claimant was in breach of his Constitutional right to fair hearing. 4. Whether the policy requiring the retirement of the Claimant was a travesty of equity. 5. Whether the Defendants can amend the rules governing the contract of service of the Claimant to defeat the Claimant’s vested right in his employment. 6. Whether the Claimant was entitled be recalled back to his employment on the footing of the principle of relation back. 7. Whether the Claimant is otherwise entitled to an order of his reinstatement and/or damages. In arguing issue one and in reaction to the argument of the defence that the Claimant is estopped from filing this action after communicating a voluntary letter of retirement to the Head of Service which was dated the 5th September, 2012, it is the Claimant’s submission that this argument flies in the face of the Defendant’s pleadings. The Defendants in their statement of defence, in paragraph 4(e), pleaded that the Claimant was forced to retire after refusing to retire in line with the Circular No: HAS/S.0074/91 of 1st August, 2011. “4 (e) The Claimant did not comply with the above requirement of the circular as a result of which the office of the 5th Defendant was constrained to issue the Claimant a letter of retirement notice/hand over notice dated 23rd December, 2011.― According to the Claimant, it is an elementary principle of adjectival jurisprudence that parties and the Court are bound by the pleadings before the Court. He cited the authority of Afolabi v. W.S. Ltd. (2012) 17 NWLR (Pt. 1329) 286, 302 where the Supreme Court said: “If pleadings are to be of any use parties must be held bound by them. See Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413, Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 413.― Again, in the case of Emenike vs. PDP (2012) 12 NWLR (Pt. 1315) 556, 603 the Supreme restated the point like this: “If pleadings are to be of any use, parties must be held bound by them. Courts are bound by pleadings and not on the whims and fancies of counsel or what they imagine or speculate. The law is applied to pleaded facts and the issue between the parties resolved. Courts do not concern themselves with issues not before them.” See also the case of Agbule vs. Warri Refinery and Petrochemical Coy. Ltd. (2013) 6 NWLR (Pt. 1350) 318, 361 where the Supreme Court again repeated this hallowed principle when it said: “The Plaintiff (appellant) pleaded that the Defendant (Respondent) is a subsidiary of NNPC. Parties are bound by their pleadings. That in effect means that if pleadings are to be of any use parties must be held bound by them. See Balogun v. Adejobi (1995) 2 NWLR (Pt.376) 131, Williams v. Williams (1995) 2 NWLR (Pt. 375) 1”. Counsel referred to paragraph 9 of the statement on oath of Ijeoma M. Egesie, DW1 in these proceedings, where it was clearly stated that the Claimant did not comply with this requirement as stipulated in the circular as a result of which the office of the 5th Defendant was constrained to issue the Claimant a letter of retirement notice/head (sic) (hand) over notice dated 23rd December, 2011. According to the Claimant, from these admissions, it is clearly wrong for the Defendants to take cover under the doctrine of estoppel. There is nothing in the conduct of the Claimant, who on the showing of the Defendants was forced to retire, that invites the strictures of estoppel. Besides, the fact that the Claimant protested his retirement and his letter dated 23rd October, 2011 is not consistent with voluntariness. The fact that the retirement was inconsistent with Law No. 8 of 2008 shows that the retirement was involuntary. Counsel urged the Court to hold that the retirement was involuntary and therefore resolve issue one in favour of the Claimant. The Defendants cannot blow hot and cold from the same mouth – allegans contraria non est audiendus. See Ezenwa vs. Ekong (1999) 11 NWLR (Pt. 625) 55, 73 C – D. On issue two, in response to the argument of the Defendants to the effect that the applicable laws that govern pension and years of service in Abia State is not the Pension Act, Cap 346, Laws of the Federation (1990) but the Public Service Rules, 2001 alongside amending circulars; counsel submitted that this argument is clearly misleading. Counsel cited Article 02807 of the Abia State Public Service Rules which incorporates the Pensions Act No. 102 of 1979 into its provisions in this way: “The grant of pensions and gratuities to holders of pensionable post in Abia State is governed by the Pensions Act 1979, and current circulars.― According to the Claimant, the said incorporation by reference was not repealed by the Abia State Government. It is still extant. In view of that, it is wrong to argue that the Pensions Act No. 102 of 1979 is not applicable to these proceedings. Counsel went on that the authority of Abdullahi vs. Military Administrator, Kaduna State (2009) 15 NWLR (Pt. 1165) 417 cannot apply to this case because that Act was specifically incorporated into the provisions of the Public Service Rules. The Abia State Government cannot contract out of the Pensions Act, without first amending its own Rules to remove that incorporation by reference. Even a repeal of the principal Act that is to say the Pensions Act cannot affect the subsidiary legislation that is the provisions of Public Service Rules of Abia State. See Section 4(2) (a), (b) and (c) of the Interpretation Act and the cases of Abdullahi vs. MILAD (2004) 5 NWLR (Pt. 866) 232, Afolabi vs. Governor of Oyo (1985) 2 NWLR (Pt. 9) 734, Uwaifo vs. A.G. Bendel State (1982) 7 SC 124, Lipede vs. Sonekan (1985) 1 NWLR (Pt. 374) 668. Counsel urged the court to ignore any invitation to consider the preambles to the Civil Service Rules as a guide to interpreting those Rules as there is nothing ambiguous in Article 02807 of the Rules. A preamble needs not to be looked at all if the enacting part is unambiguous. It can only be looked at as an aid to construction when there is an ambiguity or there are two conflicting views or enactment in the statute. See the case of Ogbonna vs. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647,686 para. D –F. On the whole therefore, the applicable laws to these proceedings are the 1999 Constitution, the Pensions Act No. 102 of 1979, the Pensions Board Law of Abia State, Law Officers (Harmonization with Magistrates) Law No 3 of 2008, the Public Service Rules and Current Circulars. Counsel cited the Pensions Act which provides in Section 4 thereof for retirement at the age of thirty five years or sixty years whichever is earlier. The Pensions Board Law in Section 5(1) (b) provides for compulsory retirement after qualifying service of thirty five years or upon the attainment of sixty years whichever is earlier. Section 3(1) of the Laws Officers (Harmonization with Magistrates Law) No 3 of 2008 provides that salary and conditions of service shall be the same as those of Magistrates in equivalent posts in the State Judicial Service, Article 02809 of the Abia State Public Service Rules provides for compulsory retirement of sixty years of age or thirty years of pensionable service or whichever is earlier. Counsel submitted that while the Defendants can amend or repeal current circulars within the ambit of the law, they are without powers to amend the 1999 Constitution, the Pensions Act No. 102 of 1979 and the Pensions Board Law of Abia State. He cited the decision of this court in the case of Ignatius Onwuji vs. Federal Polytechnic Nekede Suit No NICN/PHC/10/2013 judgment delivered on 11th day of January, 2017 where this court held that circulars and letters cannot overrule statutes like the Pensions Act. Counsel urged the court to follow its own decision which is binding on it. He urged the court to hold that the Defendants cannot by circulars amend the terms of employment of the Claimant contrary to the provisions of the Pensions Act No. 102 of 1979 and the Pensions Board Law of Abia State; in which event, the Claimant ought to remain in service until he reaches the age of sixty years or has put in thirty five years in service, or whichever one is earlier. This, according to counsel, was given legal imprimatur in the case of PHMB vs. Ejitagha (2000) 11 NWLR (677) 154, 160 or (2000) 6 SC (Pt II) 1, 7. The impugned circulars ought not to affect the Claimant since the circulars did not ex facie apply to Magistrates in Abia State whose conditions of service are equivalent to the Claimant. On issue three, it is the Claimant’s submission that the Constitution of the Federal Republic of Nigeria 1999 is the fons et origo of all laws in the country. It is the grundnorm upon which all relationships are gauged. All governmental actions must be regulated by the Constitution and the laws. That is the imperative of the rule of law. One of the pillars of the rule of law and constitutionalism is the doctrine of natural justice. In the case of Aiyetan vs. NIFOR (1987) 1 NWLR (Pt. 48) 499 the Supreme Court stated the principle as follows: “The principle of natural justice as enshrined in the rules of common law and section 36(1) of the 1999 Constitution as amended is not confined to courts or tribunals established under section 6(5) of the 1999 CFRN but to every situation, wherever a person or authority is concerned in the determination of the rights of another”. According to counsel, there is no doubt that in the publication of all the circulars tendered in these proceedings, the Claimant was not heard before their publication. The Claimant in paragraph 4 of his relief claimed a declaration that all the circulars tendered in these proceedings which were published without negotiation with the Claimant, were published in breach of the Claimant’s right to fair hearing. This was repeated in paragraph 9 of the evidence on oath of the Claimant. DW1 admitted in cross examination that the Claimant was not given any hearing before those circulars were published. There is no doubt that by publishing those circulars which no doubt affected the civil rights and obligations of the Claimant in relation to his employment, the Defendant were obliged under the constitution to hear the Claimant before publishing those circulars within the frame work of Section 36 (1) of the 1999 Constitution. In Adedeji vs. Police Service Commission (1967) All NLR 72 the Supreme Court held that the dismissal of the Appellant without hearing him was irregular and contrary to natural justice. In the case of Olatunbosun vs. NISER (1988) 3 NWLR (Pt.80) 25, 27 the Supreme Court per Oputa JSC said: “The right of a man to be heard in his own defence is the most elementary protection of all, and where a statutory form of protection would be less effective if it did not carry with it a right to be heard, I would not find it difficult to imply this right”. Counsel submitted that the right to fair hearing cannot be taken away by legislation of any kind. In the case of LDPC vs. Fawehinmi (1989) 2 NWLR (Pt. 7) 200, 370 the Supreme Court per Karibi – Whyte JSC said: “In the circumstances of this country fair hearing is an entrenched provision of the Constitution which cannot be displaced by legislation however unambiguously worded”. In other words, the impugned circulars which were published without giving the Claimant some hearing offended against the Constitution as its letter and tenor require that whenever an administrative action is proposed against a staff, he must be given adequate notice to make representation. This is what Nnamani JSC said in the case of Aiyetan vs. NIFOR (1987) 1 NWLR (Pt. 48) 499 when he said: “This court is once again called upon to examine the principles of natural justice as they relate to disciplinary action taken against employee by public institutions. The rule requires that the person liable to be directly affected by the proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that he can make representation”. Counsel urged the court to set aside the retirement ex debito justicae as any breach of fair hearing nullifies whatever steps that have been taken in relation to the matter that is being call to question. The right to fair hearing being a constitutional right, any breach of it nullifies any action taken. In the case of Rasaki Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23 Adio JSC stated the effect of denial of fair hearing as follows: “The consequence of a breach of natural justice of fair hearing is that the proceedings in the case are null and void. — if a principle of natural justice is violated, it does not matter whether the proper thing had been done. The decision would have been the same. The proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.” In the case of Adigun vs. A.G. Oyo State (1987) 3 SC 250, 344 Eso JSC said: “Once an Appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria would need to proceed further to show damnum. The injuria herein is a proof positive of the damnum.” Counsel urged the court to set aside all the circulars published in breach of the Claimant’s right to fair hearing. On issue four, it is counsel’s submission that even if the circulars did not breach the Claimant’s right to fair hearing, the same are a travesty of equity. The circulars were published by the Government to affect only the Claimant. The circulars started with the Claimant and were spent with the Claimant. After the Claimant was forced to retire, the circulars were repealed. On the admission of the DW1, the policy of retirement after putting in eight years as a director did not go beyond the Claimant. The law is settled that any policy of Government that is a travesty of equity is unjust and unenforceable. In the case of Okusami vs. A.G. Lagos State (2015) 4 NWLR (Pt. 1449) 220, 253 the Court of Appeal said that when a policy is carried out inequitably or where its decision travests equity, the court will upset same. In that case, the Court of Appeal said: “Where even Government policy is carried out inequitably, this court shall upset the decision that travests equity.” Counsel urged the court to upset the policy contained in the Circular No. HAS/S/0074/11/91 as the same was a travesty of equity. More so, the Defendants did not show affirmatively in its pleadings and viva voce that the retirement of the Claimant was to review and invigorate the service, restore moral of officers and unlock the creative potentials of hard working officers. Having failed to do so, the retirement of the Claimant was not proved to be justified in law. In the case of PHMB vs. Ejitagha (2000) 11 NWLR (677) 154, 160 or (2000) 6 SC (Pt II) 1, 4 the Supreme Court per Uwaifo JSC said: “To force a public servant into retirement that is before he gets to his retirement age is an unusual action against him in his career. Such an action could admittedly, be due to a variety of reasons including ill heath, redundancy reorganization, retrenchment, unproductivity etc., or even upon contractual or regulatory powers conferred on and exercised by the employer. When an employer relies on one or more of these reasons, he would be expected to have facts or the law in support. The burden is on him to satisfy the court on this. To place the burden of proof wrongly on a party will usually lead to a miscarriage of justice.― To counsel, having not shown that the Claimant was retired for the purposes shown in the circular, his retirement was equally ultra vires the Defendants’ own circulars assuming without conceding that the circulars were validly made. Counsel urged to uphold the Claimant’s argument in this issue and hold that the purported retirement based on a discriminatory policy was inequitable. On issue five, it is the Claimant’s submission that even if the Defendants can validly amend the Public Service Rules, the Pensions Board Law and the Pensions Act through circulars, which is denied, the amendments cannot, by operation of the law, affect vested rights. Amendment of any statute cannot impair vested rights without express words. See the cases of Udoh vs. GHMB (1993) 7 NWLR (Pt. 304) 139, Kanada vs. Governor of Kaduna State (1986) 4 NWLR (Pt. 35) 301, Garba vs. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449, Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377. In the case of Udoh vs. GHMB (1993) 7 NWLR (Pt. 304) 139, 149 (supra) the Supreme Court stated the point clearly in this way: “It is a well recognised principle of construction of statutes that a statute is not to be so construed as to impair an existing right or obligation, unless such construction is clear from the words of the section and such effect cannot be avoided without doing violence to the language of the enactment. Hence a statute should be construed to as not to have a greater retrospective operation than its language renders necessary. See Lauri vs. Renad (1892) 3 NWLR 3 ch. 420, in re Ahlumney (1998) AC. 475. Ojokolobo v.Alamu (1987) 3 NWLR (Pt. 61) 377. “A final judgment confers right on the person in whose favour the judgment has been awarded. It will no doubt be an unjustified interference with such vested doubt absurd. I am in entire agreement with the submission of Mr. Adetola Kazeen which upholds the sacred principle that any provision which suggest a deprivation of the jurisdiction of the courts must be strictly construed. See Salami vs. Chairman, LEDB (1989) 5 NWLR (Pt. 123) 539. On similar principles the courts lean against the deprivation of accrued or vested rights. See Kanda vs. Governor of Kaduna State (1986) 4 NWLR (Pt. 35) 361, Garba vs. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449. In Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377 or 1987 7 SC (Pt. I) 124, 127 the Supreme Court said substantive amendments cannot be retrospective. The Court said: “The new dimension is the issue as to whether the amendment to section 258 affects substantive law or it affects purely procedural matter. Both Counsel relied on the general principle of interpretation of statutes and contended that, if the provision of the amendment is an enactment of substantive law then, the operation of the amendment cannot be retrospective and must be prospective. On the other hand, if the amendment is a matter of procedure then, its operation is retrospective. Learned Counsel submitted the amendment was of procedure and referred to In Re Athlumnev (1898) 2 O.B. 547 at 551-552 and West v. Gwynne (1911) 2 Ch.1 at 15―. As the right of the Claimant to remain in service for thirty five years or for sixty years of age or whichever is earlier had become vested before the publication of the amendment, it could not have been applied to the Claimant on the footing of doctrine against retrospective construction of amendments. Counsel urged the court to so hold. On issue six, counsel submitted that amendment to a statute takes effect from date of the previous statute which it seeks to amend. This is called the doctrine of relation back. In the case of Ojokolobo vs. Alamu (1987) 3 NWLR (Pt. 61) 377 or 1987 7 SC (Pt. I) 124, 132, Bello CJ N explained the principle like this: “Furthermore, where a statute is passed for the purpose of a former statute, the subsequent statute has relation back in time when the prior act was passed. See Craies on Statute Law, 7th Ed. P. 395. It is quite clear that the amendment does no more than to resolve the contentious issue in Ifezue case as to whether the provisions of subsection 258(1) were mandatory or directory i.e. whether or not were non compliance with the subsection renders the decision of a Court null and void. The amendment resolves the issue in the negative. Since the amendment simply “explains” the effect of non-compliance with subsection 258(1), it ought to have effect from 1st October 1979 which was the date subsection 258 (1) came into force.” According to counsel, by parity of reasoning, the amendment to Circular No HAS/S.0074/11/91 by Circular No. EST/RR/222/20 relates back to 1st August, 2011 when the prior circular was enacted. What it means is that beginning from 1st of April, 2015 when it was signed into law by the Head of Service, all those retired on the policy propounded by the prior Circular No. HAS/S.0074/11/91 had the retirement suspended on the suspension of the policy of the amending circular. The doctrine of relation back has been so entrenched in the corpus of our interpretative jurisprudence as to be blown away by the whirlwind. Counsel cited the following cases in support of this argument: Vulcan Gases Ltd vs. G.F. Industries AG 2001 9 NWLR (Pt. 719) 610; Mobil Oil Nig. Ltd vs. Yusuf 2012 9 NWLR (Pt. 1304) 47, 57; Bello vs. INEC 2010 8 NWLR (Pt. 1196) 342, 385 A-B Rotimi vs. Macgregor 1994 11 SC 113; Oseyomon vs. Ojo 1993 6 NWLR (Pt. 299) 344. Since the retirement policy was suspended, the Claimant was entitled to be recalled back to work from the 1st of April, 2015 when the suspension was announced as by operation of the law, the suspension related back to 1st August, 2011 the date of the prior enactment of the policy. Counsel urged the court to uphold this argument and direct the reinstatement of the Claimant. On issue seven, counsel submitted that the Defendants did not join issues with the Claimant on the damages claimed in paragraph 5, 6, 7 and 8 of the amended claim and paragraphs 5, 6, 7 and 8 of the witness deposition of David Onyeike. By not joining issues or by not pleading alternative figures to those pleaded by the Claimant, the Defendants are deemed to have admitted those figures, and in the event of the court granting the Claimant’s prayers, those figures ought to be taken as proved. In the case of Oparaji vs. Ahihia (2012) 4 NWLR (Pt. 1290) 266, 276-277 the Court of Appeal said: “A proper traverse must be a specific denial which joins issues on facts with the Plaintiff. See Lewis Peat (NRI) v. Akhimien (1976) 1 FNLR 80; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598. A general traverse is not enough to controvert material and essentially important and radical averments in the statement of claim which are foundations of the Plaintiff’s case. A traverse, as I understand it, is a categorical denial in the statement of defence of any fact alleged in the statement of claim”. Similarly, in the case of Oando Nig Plc. vs. Adijere WIA Ltd. (2013) 15 NWLR (pt. 1377) 374, 403 the Supreme Court of Nigeria said that since the defence did not suggest a contrary figure, as in this case, minimal evidence is needed to sustain the head of claim. This is how the apex court put the point: “Although the evidence of the value of the burnt down truck is based on the ipse dixit of PW5, since the claim was not specifically denied and the defence did not suggest a contrary figure, minimal evidence is needed to sustain this head of claim. The decision in Osuji v. Isiocha (supra) is of no assistance to the cross-respondent. Furthermore, since the evidence of PW5 on the value of the tanker was not contradicted, it is valid and sufficient to satisfy the requirement of strict proof See: Odulaja v. Hadded: (1973) All NLR 836 at 839 – 841, Ajao v. Ashiru (1973) 11SC 23, A.G., Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255, Ijebu-Ode Local Government v. Balogun & Co. (1991) 1 NWLR (Pt. 166), NEPA. v. Alli (1992) 8 NWLR (Pt. 259) 279 and Nzeribe v. Dave Eng. Co. Limited (1994) 8 NWLR (Pt. 361) 124.” Counsel urged the court to grant the prayers as pleaded and proved by the Claimant and grant the reliefs of the Claimant as prayed. COURT’s DECISION Having heard the submissions of the learned counsels to the parties in their final written addresses let me now determine the case. I will first examine the facts and evidence adduced in this case by the parties. From the facts in the amended statement of claim and in the evidence of the Claimant, his case is that he was employed by the Defendants through the 3rd Defendant as Principal State Counsel vide an employment letter dated 26th March 1997 and he was posted to the Ministry of Justice. His appointment was confirmed on 18th November 1999. In 2001, the Claimant was promoted to Deputy Director and in 2005 he was promoted to Director. On 1st August 2011, the 2nd Defendant published circular no. HAS/S.0074/11/91 directing all serving Permanent Secretaries, Heads of Non-Ministerial Departments and Directors who would have spent 8 years or more on the post by 1st December 2011 to proceed on pre-retirement activities when due. The Claimant and other affected Law Officers wrote a petition to the Defendants in a letter dated 26th October 2011 on the inapplicability of the circular to Legal Directors in the Ministry of Justice. The Defendants however discountenanced the petition. Based on the circular, the 2nd Defendant retired the Claimant from service with effect from 1st January 2012 in a letter dated 17th October 2012. By a letter dated 10th September 2014 with reference number HAS/EST/RR/222/16, the 2nd Defendant rescinded the tenure policy of 8 years for Solicitor-General/Permanent Secretary and Directors who are law officers in the Abia State Ministry of Justice. The Claimant averred that on the doctrine of relation back, amendments, modification or alterations are construed retrospectively. Based on this doctrine, he wrote a letter dated 30th October 2014 to the Permanent Secretary of the Ministry of Justice to be allocated a department and for his arrears of salary from the date of his retirement to be paid but the 4th Defendant spurned his request. Even if circular HAS/S.0074/11/91 of 1st August 2011 was not rescinded, it was ultra vires the powers of the Defendant under the Pension Law of Abia State and the Abia State (Law Officers Harmonization with Magistrates) Law 2008. Again, as at the time of the publication of the mentioned circulars, the Claimant’s right had become vested. The Defendants also do not have power to publish the said circulars. Thus, the Defendants had no power to retrospectively alter the terms of the Claimant’s employment. The Defendants’ refusal to reinstate him is therefore wrongful and unlawful. In consequence, the Claimant averred that he is entitled to the following: i. to be re-instated to his position as Director in the Abia State Civil Service ii. or be paid: a. his full salaries and allowances for the remaining 14 years of his service on salary Grade Level 17 step 9 b. 100% computation of his gratuity on salary Grade Level 17 step 9 c. Severance allowances of 300% of his annual salary for the premature termination of his service. The Defendants’ case is that upon publication of circular HAS/S.0074/11/91 of 1st August 2011, it was circulated to all affected Directors including the Claimant. By the circular, the Claimant was expected to give 3 months statutory notice of retirement to either the 1st or 3rd Defendants before the date of retirement which was 1st January 2012. The Claimant did not comply with the directive in the circular and as a result, the 4th Defendant had to issue the Claimant a retirement/hand over notice dated 23rd December 2011. It was not until 5th September 2012 that the Claimant sent in his notification of retirement from service with effect from 1st January 2012 to the 1st, 2nd and 3rd Defendants. The notice approving the Claimant’s retirement was dated 17th October 2012. The appointment of the Claimant was not absolute in respect of 35 years of service or 60 years of age. The Claimant’s letter of appointment contains the conditions of the Claimant’s appointment into the civil service which terms and conditions were accepted by the Claimant when he resumed work. The Civil Service Rules of old Imo State 1979 and the Public Service Rules of Abia State 2001 merely prescribed the maximum age limit or years of service for mandatory retirement. These Rules do not constitute terms of the contract of service between the Claimant and Defendant. The contractual relationship between the Claimant and the Defendants was governed by his letter of appointment dated 20/3/1991. The letter also made the Claimant’s appointment subject to conditions of service as may be made in government regulations, and instructions including circular HAS/S.0074/11/91 of 1st August 2011. The Public Service Rules of Abia State provides that the rules are to be read in conjunction with circulars, instructions and gazette notices issued after 1st January 2001. The PSR also states that the rules may be amended through circulars. The Claimant was not affected by circulars HAS/EST/RR/222/20 of 16th April 2015 and HAS/EST/RR/224/4 of 21st April 2015 as he had already retired before the publication of these circulars. DW1 also stated that the Claimant’s pension has been computed and he has been collecting his pension since his retirement from service. The payment of the Claimant’s retirement benefits pro rata on his years of service is in line with applicable regulations and laws governing payment of pensions and gratuities in Abia State Civil service. The tenure policy was not discriminatory but was a measure applied to all officers in the Abia state civil service to reorganise the civil service. Having considered the facts of the case as presented from the angle of the Claimant and the Defendants, the simple issue which arises for determination is whether the Defendants’ refusal to reinstate the Claimant to his position as Director in the Abia State Civil Service upon the publication of the circular no. HAS/EST/RR/222/16 2014 of 10th September 2014 was wrongful and unlawful. Before I go into the issue, let me first express my view about some points made by the Claimant’s counsel in his final written address. The first issue raised by the Claimant’s counsel in his final address is whether the Claimant is estopped from challenging his retirement in this suit. The Claimant’s counsel went further in issues 2 to 5 of his written address to argue about the lawfulness or validity of the Claimant’s retirement from service. The Claimant’s counsel seems to call this court to consider the propriety or validity of the Claimant’s retirement from service. I recall my ruling in this matter on 17th November 2015 where I held that the Claimant’s cause of action in this suit was the refusal of the Defendants to reinstate him after the publication of circular no. HAS/EST/RR/222/16 of 10th September 2014 and not his retirement from service on 1/1/2012. It was in view of this cause of action I held the view in that ruling that the Claimant’s case was not statute barred. The issue of the retirement of the Claimant on 1/1/2012 is a cause of action separate from the refusal to reinstate him in September 2014 when circular HAS/EST/RR/222/16 was published. Therefore, any claim or complaint about his retirement would have become statute barred as at the time this suit was commenced against the Defendants. The points argued by counsel in the issues raised by him were not even pleaded by the Claimant. Parties are bound by the case they presented in their pleadings. See AFOLABI vs. W.S. LTD. (2012) 17 NWLR (Pt. 1329) 286; EMENIKE vs. PDP (2012) 12 NWLR (Pt. 1315) 556. Apparently, the Claimant’s counsel decided to change the case brought by the Claimant. The Claimant cannot decide to switch to a case different from what he has pleaded or make any claim about his retirement in this action. A reading of the facts of the Claimant’s case shows clearly that his case is about the refusal to reinstate him upon publication of circular no. HAS/EST/RR/222/16 on 10/9/2014. I will only concern myself with that subject in this suit. According to the Claimant, on 1st August 2011, the 2nd Defendant published circular no. HAS/S.0074/11/91 wherein all serving Permanent Secretaries, Heads of Non-Ministerial Departments and Directors who would have spent 8 years or more on the post by 1st December 2011 were directed to proceed on pre-retirement activities when due. The circular is Exhibit F. Based on this circular, the 2nd Defendant retired the Claimant from service with effect from 1st January 2012 in a letter dated 17th October 2012, which is Exhibit H. He was in retirement until 10th September 2014 when the office of the 2nd Defendant published another circular with reference no. HAS/EST/RR/222/16. By the content of the circular which is in evidence as Exhibit I, the 8 years tenure policy for Solicitor-General and Directors was relaxed with respect to Law officers in the Ministry of Justice. The directive in the circular include that Solicitor-General and Directors in the Ministry of Justice, will, from the date of the circular, retire from service either at the mandatory age of Sixty (60) years or on the attainment of Thirty-Five (35) years in service. The Claimant said after the publication of the circular HAS/EST/RR/222/16, he wrote a letter dated 30th October 2014, Exhibit J, to the Permanent Secretary of the Ministry of Justice requesting to be reinstated but his request was not considered. The Claimant’s complaint in this action is that in view of circular HAS/EST/RR/222/16, he ought to be reinstated into his position of a Director in the Abia State Civil Service. Hence, his claim in Relief 1 is for a declaration that he is still in the employment of the Government of Abia State by virtue of the Establishment circular HAS/EST/RR/222/16 of September 10, 2014 and subsequent circulars to that effect and that the refusal or neglect of the of the Defendants to re-instate him is wrongful, illegal and unlawful. In paragraph 2 of the statement of defence, the Defendants denied the allegations of the Claimant contained in the paragraphs of the statement of facts about his non re-instatement after circular HAS/EST/RR/222/16 of September 10, 2014 was released and, without saying anymore, put the burden of proving his allegations on the Claimant. The Defendants also averred that the Claimant was not affected by circular HAS/EST/RR/222/16 having already retired from service before the date of the circular. Other than relief 5, all other reliefs numbers 1, 2, 3, 4, 6, 7, and 8 are seeking declaratory reliefs. The law is trite that the Claimant must prove the claims before he can be entitled to the declarations sought. See CHEMIRON INT’L LTD vs. EGBUJUONUMA (2007) All FWLR (Pt.395) 444 at 454; PAUL NWAZUAH NKWO vs. IBOE (1998) 7 NWLR (Pt.558) 354. This is also in line with Section 131 (1) of the Evidence Act 2011 (as amended) which requires the Claimant to prove that he was entitled to be recalled or reinstated pursuant to circular HAS/EST/RR/222/16 of 10/9/2014. The basis on which the Claimant claims in this suit is the circular no. HAS/EST/RR/222/16 and he found his case on the circular because, according to him, by the doctrine of relation back, amendments, modification or alterations are construed retrospectively. The Claimant appears to contend that the circular should be construed to the date of earlier circular no. HAS/S.0074/11/91 under which he was retired. As such, he should be deemed still in employment or be re-instated. The Claimant’s counsel argued that by the doctrine of relation back, the amendment to circular no. HAS/S.0074/11/91 by circular HAS/EST/RR/222/16 relates back to 1st August 2011 such that the retirement of those retired under the earlier circular HAS/S.0074/11/91 is deemed suspended. The Claimant’s counsel cited a number of cases on this point. Let me quickly point out that the principle of relation back applies to, and is used in relation to statutes or legislations. A circular is not in the category of statutes or legislations. It is only an administrative instrument. The authorities cited by the Claimant’s counsel on the point will not suffice. In my view, whether circular HAS/EST/RR/222/16 can be taken to relate back to the date of circular no. HAS/S.0074/11/91 depends on the content or the intention of the 2nd Defendant as expressed in the words used in the circular. The circular reads thus: “RETIREMENT POLICY BASED ON TENURE OF OFFICE. RE: LAW OFFICERS IN ABIA STATE MINISTRY OF JUSTICE. I write to convey approval of his Excellency, the Executive Governor of Abia State for the relaxation of the tenure policy of 8 (eight) years for the Solicitor-General/Permanent Secretary, and Directors who are Law Officers in the Abia State Ministry of Justice. The relaxation of the policy is necessitated by the need to retain experienced law officers in the Ministry to save the State Government the dangers of engaging private legal practitioners at huge financial cost to handle important state cases plus the misfortune of losing some of these cases in court due to mishandling occasioned by inexperience of upcoming lawyers in the ministry. In view of the above, law officers in the ministry of justice like their counterparts in the Judiciary (Magistrates) will now retire from service either at the mandatory age of Sixty (60) years or on the attainment of Thirty-Five (35) years in service. This circular takes immediate effect and modifies all other establishment circulars on the issue signed: G.C. Adiele Esq., Head of Service. The content of the circular relevant to the issue at hand are found in the 3rd and 4th paragraphs of the circular. The directive in the circular, which takes “immediate effect―, is that the Solicitor-General and Directors in the Ministry of Justice “will now― retire from service either at mandatory age of Sixty (60) years or on the attainment of Thirty-Five (35) years in service. The effective date of the circular was “immediate― on its publication. The use of the words “will now retire― indicates that the relaxation of the tenure policy introduced by circular no HAS/S.0074/11/91 takes effect from 10/9/2014 being the date of circular no. HAS/EST/RR/222/16. Clearly, there is no indication that the circular was retrospective or relate back to the date of circular no HAS/S.0074/11/91. It also did not affect those already retired under circular no. HAS/S.0074/11/91. By the words of the circular, it was meant to apply only to those still in service at the time of publication of the circular. The circular cannot apply to the Claimant who had retired from service before the circular was released. Furthermore, the circular, in its 4th paragraph, contain that the circular “modifies all other Establishment Circulars on the issue.― Perhaps, this was the basis the Claimant pleaded in paragraph 8 of the amended statement of facts that amendments, modifications or alterations are construed retrospectively. I observe that this averment was where the Claimant founded his relief 2 seeking to nullify circular no. HAS/S.0074/11/91 on the Claimant’s belief that it had been “superseded, abrogated, modified, or amended by circular no. HAS/EST/RR/222/16 of September 10, 2014―. From the Claimant’s contention, it appears to me he thinks circular HAS/EST/RR/222/16 repealed circular HAS/S.0074/11/91 and the acts done under it. The word “modifies― as used in circular HAS/EST/RR/222/16, does not mean a withdrawal or repeal of circular HAS/S.0074/11/91. To modify simply means to make changes or to vary or alter in some respect. The modification or changes or alteration do not affect or set aside the steps or acts done under the modified instrument. It is clear to me that circular no. HAS/EST/RR/222/16 only relaxed the tenure policy of 8 years with respect to Law Officers in the Ministry of Justice. This circular did not withdraw or repeal circular HAS/S.0074/11/91. It did not also cancel, abrogate or set aside the retirements already done under circular no. HAS/S.0074/11/91. The Claimant sought in relief 3 a declaration that circulars HAS/EST/RR/222/20 of 16th April 2015 and HAS/EST/RR/224/4 of 21st April 2015 published when this suit was pending are unlawful and unconstitutional. Although these circulars were admitted in evidence from the Claimant as Exhibits K and L respectively, the Claimant did plead the fact that the circulars where made when the suit was pending nor did he plead any fact with which to determine the declaration sought with regards the circulars. The Claimant did not also give oral evidence on this relief. In any case, the mere fact that the circulars were published while this suit was pending does not render them unlawful or unconstitutional. The Claimant has to go further to show that the circulars offended a law or breached provisions of the constitution. The Claimant did not make out any case on which this court can grant the declaration sough in relief 3. However, the learned counsel for the Claimant, while addressing issue 6 of his written address, submitted that from 1st April 2015 when circular HAS/EST/RR/222/20 (Exhibit K) was published, the retirement of those retired under circular no. HAS/S.0074/11/91 was suspended. By this argument of the counsel to the Claimant, counsel thinks the Claimant should take advantage of the circular HAS/EST/RR/222/20 when in actual fact, what the Claimant sought in relief 3 was that the circulars be invalidated for being, among others, unlawful and unconstitutional. More so, the Claimant’s counsel deliberately refused to mention the second circular no. HAS/EST/RR/224/4 of 21st April 2015, which is Exhibit L, in his submissions. In this latter circular, released few days from Exhibit K, the office of the 2nd Defendant explained that the circular in Exhibit K does not apply to those who retired from service based on 8 years tenure policy before April 1st 2015. The Claimant was retired before 1st April 2015. Exhibit L has made it very clear that the Claimant cannot rely on Exhibit K to seek re-instatement. Without further ado in this matter, I find that circular no. HAS/EST/RR/222/16 did not have retrospective intendment. It also did not cover the Claimant. Therefore, I cannot find any merit in the Claimant’s allegation that he ought to be reinstated by virtue of the said circular HAS/EST/RR/222/16. I cannot also find anything wrongful or unlawful in the Defendants’ refusal to reinstate him in spite of circular no. HAS/EST/RR/222/16. In the result, the Claimant has not made out any case for the reliefs he sought in this case. His case fails and it is hereby dismissed. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge |
