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National Industrial Court

MR. SAMUEL I. WOKA & 5 ors -VS- CIVIL SERVICE COMMISSION, RIVERS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE YENAGOA JUDICIAL DIVISION

HOLDEN AT YENAGOA

 

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

 

DATE: FRIDAY 31ST JANUARY, 2020                               SUIT NO: NICN/YEN/141/2015

 

BETWEEN:

 

  1. MR. SAMUEL I. WOKA
  2. MS. KADILO BROWN
  3. MR. NUKA N. NWIKPASI                                                    CLAIMANTS
  4. MR. ORLU ORLU AUGUSTINE N.
  5. MINABELEM MICHAEL WEST
  6. SIR NGOZI Y. ABU

 

AND

 

  1. CIVIL SERVICE COMMISSION, RIVERS STATE
  2. HEAD OF THE CIVIL SERVICE, RIVERS STATE
  3. ACCOUNTANT GENERAL OF RIVERS STATE         DEFENDANTS
  4. ATTORNEY GENERAL, RIVERS STATE
  5. GOVERNOR OF RIVERS STATE

(JOINTLY AND SEVERALLY)

 

 

REPRESENTATION

 

Mr. O.C. Eyiba Esq for all the Claimants.

 

Mr. H.N. Amadi Esq (Principal State Counsel) Rivers State Ministry of Justice for all the Defendants.

 

JUDGMENT

INTRODUCTION AND CLAIMS

 

The Claimants instituted this action by a way of complaint dated the 9th day of December, 2015 and filed on the same day.  The Claimants sought against the Defendants for the following reliefs:

 

  1. A DECLARATION that the purported approval of the compulsory retirement or the retirement of each of the Claimants “compulsorily” and with “immediate effect” from the Rivers State Civil Service by the Defendants particularly the 5th Defendant through press release of his Special Assistant to the Rivers State Governor, Electronic Media on 20th November, 2015, and or howsoever thereafter by any of or all of the Defendants is unlawful, illegal, unconstitutional, null and void.

 

  1. A DECLARATION that each of the Claimants is still a member or a serving member of the Rivers State Civil Service of the rank and status of Permanent Secretary entitled to the perquisites of office including but not limited to salaries, allowances, emoluments and accrued/accruing benefits associated with the office of Permanent Secretary of each of the Claimants pursuant to the several appointments of each of the Claimants as Permanent Secretary having not been lawfully, legally and constitutionally determined in accordance with the extant Public Service Rules and laws applicable to the Rivers State Civil Service.

 

  1. AN ORDER setting aside the purported approval of the compulsory retirement or any retirement compulsorily or any purported retirement of the Claimants with immediate effect from the Rivers State Civil Service by the Defendants particularly the 5th Defendant through the press release of his Special Assistant on Electronic Media on the 20th November, 2015 or any other date or howsoever thereafter by any of or all of the Defendants.

 

  1. AN ORDER directing the 1st – 5th Defendants particularly the 2nd – 3rd Defendants not to withhold or seize or freeze the payment to the Claimants of their respective salaries, entitlements, benefits, allowances and other properties due to them as serving members of the Rivers State Civil Service particularly as Permanent Secretaries.

 

  1. AN ORDER of injunction restraining the Defendants particularly the 1st, 2nd, 4th and 5th Defendants from ejecting or removing or invading or otherwise forcing each of the Claimants out of their respective official quarters and offices duly allocated to them in Port-Harcourt and wherein they live with their respective households and families and from seizing, impounding or otherwise tempering with the properties of the Claimants respectively as Permanent Secretaries in the Rivers State Civil Service.

 

  1. AN ORDER of injunction restraining the 1st, 2nd, 4th and 5th Defendants from serving on the Claimants any purported letter of retirement or compulsory retirement or retirement with immediate effect or otherwise removing the Claimants from the Civil Service of Rivers State, the Claimants having not attained their respective retirement stipulations either on grounds of age or length of service in the Rivers State Civil Service.

 

  1. The sum of N600,000,000 at N100,000,000 per Claimant for the several acts of humiliations, embarrassments, denigrations of their persons, pain and suffering inflicted upon them by the Defendants by the said unwarranted acts of purported compulsory retirements or retirements with immediate effect occasioned by the Defendants particularly the 5th Defendant.

 

By a Motion on Notice for Extension of time dated 20th January and filed on the 21st of January, 2019, Frank Onyiri, an Assistant Director in the Special Legal Services Department in the Rivers State Ministry of Justice, entered conditional appearance on behalf of all the Defendant; and only filed a Statement of Defence dated and filed on the 7th of October, 2016.

 

Trial commenced on the 29th day of November, 2018 with the 2ndClaimant testifying as CW1 and tendered 9 EXHIBITS marked as EXHIBITS CW1 001 – CW1 009. The 1st Claimant testified as CW2 and also tendered Exhibits which were admitted and marked as EXHIBITS CW 010 to CW 045, with a reservation by this Court of the weight to be attached to them. Both witnesses were cross-examined on their evidence by the Defendants’ Counsel after which the Claimants closed their case.

 

The Defendants, on their part, opened their defence and called only one witness who testified on its behalf as DW1. He was also cross examined on his oral testimony and thereafter, the Defendants closed their case. This Court consequently ordered the respective Parties to file their Final submissions, which were filed and same adopted.

 

CLAIMANT’S CASE IN BRIEF

The Claimants case as relevant to this suit is that they are members of the Rivers State Civil Service who rose to the position of permanent secretaries in the service and were allocated official quarters. The Claimant further avers that by their appointments, they were entitled to pension after they attain their required age of retirement. That they have never been queried, indicted nor subjected to any form of trial by the Defendants before and no disciplinary enquiry nor actions have been taken against them before their purported compulsory retirement. It was their testimony that the 5th Defendant through its Special Assistant on Electronic Media, announced their compulsory retirement sometime on the 20th of November, 2015. They state that the said purported retirement is illegal, unconstitutional, null and void and made outside the extant rules and regulations of the Rivers State Civil Service. The Claimants further states that the Defendants have stopped their salaries and are threatening to evict them from their quarters, which is causing them hardships and pains. By his Further Witness Statement on Oath, the 1st Claimant (CW2) states that his Statement on Oath is made for himself and on behalf of all the other Claimants on record and that his evidence on their behalf is as disclosed to him by the said Claimants based on their interactions in the office of their Counsel as well as perusal of their personal documents. According to him, having been appointed Permanent Secretaries from the Civil Service, they remain as civil servants and are entitled to all benefits accruing to their ranks.

 

Under cross examination, CW1 testified that he was appointed into the Rivers State Civil Service precisely the Rivers State Newspaper Corporation. He admits that the appointment to the position of a permanent secretary is at the pleasure of the 5th Defendant, which is the Governor of Rivers State, on the recommendation of the Rivers State Civil Service Commission. He was appointed as a permanent secretary on the 11thof March, 2009 and was sworn in by the 5th Defendant. It was his further testimony that the 5th Defendant unilaterally removed him from office without consulting him. Although he did not ascertain if the 5th Defendant consulted the Rivers State Civil Service Commission before the said removal. CW1 also admits that it is within the prerogative of the 5th Defendant to remove all the Claimants as permanent secretaries as it is a political appointment. According to CW1, he did not tender any document to show that the action was brought on behalf of the other Claimants but that he has the right to speak for all of them. He concluded his evidence by stating that by the stoppage of his salary/entitlement, he believes that he was removed both as a permanent secretary and as a civil servant.

 

CW2, on his part, testified that he was employed by the Rivers State Independent Electoral Commission as a Director of Media and Public Affairs. He admitted that he was not employed by the 1st Defendant. He also stated that he did not have any written document showing that he was authorized by the other Claimants on record to bring this action on their behalves even though the matter was instituted jointly. He also confirms that the appointment of a permanent secretary is made at the discretion of the 5th Defendant and that the 5th Defendant reserves the right to remove a permanent secretary upon the recommendation of the Rivers State Civil Service Commission. That they became aware of their removal through electronic and print media. CW1 admits that he was not aware when the other Claimants were each appointed as Permanent Secretaries but knows that the terms of their employments are as contained in the Civil Service Rules. According to CW1, the Claimants’ appointment is not by way of political appointment.

 

 

THE CASE OF THE DEFENDANTS

The Defendants’ sole witness, a Principal Administrative Officer in the 1st Defendant, testified in chief that the position of a Permanent Secretary is one in which only the 5th Defendant has the absolute powers to appoint and or remove any person so appointed. That the 1st and 2ndDefendants lack the powers to carry out such acts. That the appointment and removal of the Claimants was at the pleasure of the 5th Defendant as bestowed on him by the Constitution of the FRN, 1999 (as amended). According to DW1, a person does not rise to the position of permanent secretary in the civil service. He further averred that the Claimants ceased to hold office as Permanent Secretaries at midnight of the 28th of May, 2015.It was his further testimony in chief that both the 1st and 2nd Claimants were not employed as civil servants in the Rivers State Civil Service and as such are not pensionable within the Rivers State Civil Service structure. DW1 concluded by stating that the appointment of the Claimants were political having subscribed to an oath of office as permanent secretaries.

 

During cross examination by the Claimants’ Counsel, DW1 admitted that there are instances where there can be a transfer of service or secondment within the Rivers State Civil Service and that the business of the 1st Defendant is regulated by Rules, Regulations, Gazettes, Circulars, etc. He restated his evidence that the Claimants became political appointees upon being appointed as Permanent Secretaries and therefore cannot be subjected to the Civil Service disciplinary procedure, but their removal is at the pleasure of the Governor (the 5th Defendant).

 

 

THE DEFENDANTS’ SUBMISSION

The Defendants formulated four (4) issues for determination by this Court as follows:

 

  1. Whether the Governor of Rivers State has the constitutional powers to appoint and remove the Claimants as Permanent Secretaries in the Rivers State Government

 

  1. Whether the Claimants held their positions as permanent secretaries in the Rivers State Government at the pleasure of the Governor of Rivers State

 

iii.                Whether the Claimants claim as presently constituted is not incompetent and liable to be dismissed with substantial cost against the Claimants.

 

  1. Whether the Claimants are entitled to any of the reliefs sought.

 

On his issue one, Counsel relied on the provisions of Section 208(1) and (2)(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that it is the prerogative powers of the 5th Defendant to appoint and remove Permanent Secretaries. He argued that since it was the 5th Defendant who appointed the Claimants, then the powers to remove them still vests on the 5th Defendant.

 

He submitted on his issue two that the position of Permanent Secretary held by the Claimants was at the pleasure of the 5th Defendant, who can remove the Claimants as he so pleases. According to Counsel, the Claimants became political appointees upon subscribing to an oath of office. More so, that the status the Claimants held as Permanent Secretaries is not a tenured appointment. Accordingto the Defendants’ Counsel, the Claimants are not entitled to salaries or other benefits which inure on serving officers only since they were political office holders, whose appointments were at the 5th Defendant’s pleasure.

 

In arguing his issue three, Learned Counsel submitted that the Claimants’ suit as presently constituted is grossly incompetent and should be dismissed with substantial cost. His submission was based on the fact that the lumping together of several and distinct claims of each of the Claimants is a feature which prevents the Court from exercising jurisdiction in the matter. He argued that the Court cannot exercise jurisdiction to determine the several rights of the Claimants as a single right to judicial reliefs. He cited the cases of MADUKOLU v NKEMDILIM (1962) 1 ALL NLR 587and SKEN CONSULT (NIG.) LTD v UKEY (1981) 1 SC 6. Counsel also relied on the case of CCB v ROSE (1998) 4 NWLR (PT.544) P.37, to submit that the Claimants whose conditions of employment were made at different times cannot sue collectively. He argued that the action of the Claimants is founded on contract of service between each of the Claimants to the exclusion of the others, and the employer in question.

 

Counsel contends that what exists between the Claimants and the 5th Defendant is a relationship of master and servant, which is governed by a contract of service personal to each of the Claimants, hence the Claimants cannot file a joint action. He submits that this error touches on the substantive rights of the Claimants to enforce alleged breach of personal contract of service with their employer. He contends further that it is an abuse of court process and should be dismissed.

 

Counsel answers issue four in the negative, he maintains that the Claimants are not entitled to any relief as contained in their complaint. He submits that since the appointments of the Claimants were done at the pleasure of the 5th Defendant, they also can be removed by the 5th Defendant. According to Counsels further argument on the issue, the 5th Defendant rightfully exercised his constitutional powers and has done no wrong in removing the Claimants as Permanent Secretaries. He submits too that the burden to prove that the 5th Defendant did not properly exercise this power rests on the Claimants, which they have failed to discharge due to their lack of credible evidence.

 

SUBMISSION OF THE CLAIMANT

 

The Claimants’ Counsel raised three issues for determination by this Court in his Final Written Address, to wit:

 

  1. Whether the purported approval of the compulsory retirement of the Claimants from the Rivers State Civil Service by the 5th Defendant with immediate effect is unconstitutional, null and void?

 

  1. Whether the purported approval of the compulsory retirement of the Claimants from the Rivers State Civil Service by the 5th Defendant is liable to be set aside for being unconstitutional and ultra vires?

 

  1. Whether the Claimants are entitled to the reliefs claimed.

 

The Claimants’ Counsel argued both issues one and two together. Learned Counsel posited that the purported approval of the 5th Defendant compulsorily retiring the Claimants is unconstitutional, null and void. He contends that the 5th Defendant is not possessed of such powers to order or approve the compulsory retirement of the claimants. Learned Counsel’s further argument is that though section 208(1) gives the Governor the power to remove a Permanent Secretary, it does not vest the Governor with the Power to compulsorily retire a Permanent Secretary who is appointed from the civil service. He maintains that by the community reading of section 208(1) and (2) (c), and the proviso thereto, the Claimants are entitled to be returned to the public service if the 5th Defendant removes them in accordance with the law.

 

According to Counsel, by approving the compulsory retirement of the Claimants, the Defendants attempted to do two things at the same time, to wit: terminate their appointments as Permanent Secretaries and compulsorily retire them from the Rivers State Civil Service as civil servants. He contends that no such power is vested on the 5thDefendant by the Constitution.

 

Learned Counsel on behalf of the Claimants also argued that the press release through which the approval to compulsorily retire the Claimants was made, is ultra vires and void. Counsel relied on several authorities to buttress his arguments on the issue, especially the case of NAWA v ATTORNEY GENERAL, CROSS RIVER STATE (2007) LPELR-8294 (CA).Counsel urged the Court to declare the action of the 5th Defendant null and void and to set aside the 5thDefendant’s action.

 

On his next issue, Learned Counsel submits that the Claimants have established their case and should be entitled to judgment in their favour.

 

He continues by submitting further that the Defendants admitted all of the averments made by the Claimants except for the fact that the 5th Defendant has no power to retire them from the civil service. According to the Learned Counsel, the entire gamut of the evidence of the Claimants is that irrespective of whether the 5th Defendant had the powers to remove them properly, the Claimants are to be returned back into the civil service as Directors, which they were before they were purportedly removed.

 

Counsel also maintained that the Claimants were never subjected to any disciplinary procedures or sanctions and that their employment was one coated with statutory flavour, hence, the Court should graciously enter judgment for the Claimants. He posits that the evidence of the Claimants are credible and capable of being believed. He concluded by urging the Court to dismiss the contrary arguments of the Defendants’ Counsel.

 

 

DEFENDANTS’ REPLY ON POINTS OF LAW

 

The Defendants also filed a Reply on Points of Law wherein Counsel, on their behalf, strenuously made efforts to define the terms ‘remove’, ‘removal’, ‘retire’ and ‘retirement’. Counsel relied on the case of NAWA v ATTORNEY GENERAL, CROSS RIVER STATE (supra) and the 6th Edition of the Blacks’ Law Dictionary. He concludes that the term ‘retirement’ has a technical meaning but could be used in the same context as the word ‘remove’.

 

 

COURT’S DECISION

 

After a careful analysis and x-raying of the entire proceedings and the processes filed and/or admitted in this Court as well as a thorough observation of the actions, inactions, arguments and attitudes of the Parties and their Counsel all through the trial.

 

In other to effectively and effectually decide this matter, I formulated the following issues for determination:

 

  1. Whether Claimants’ employment had any statutory flavour such that it could only have been determined by Defendants’ strict compliance with the provision of the Civil Service Rules and Regulations of Rivers State and the provisions of the Pension Act Laws of the Federation.

 

  1. Whether the Governor of a state has the Constitutional power to compulsorily retire a career Civil Servant by virtue of Section 208 of the 1999 Constitution without recourse to the Civil Service Commission and its Rules.

 

 

  1. Whether the claimants are entitled to the reliefs sought.

 

Now before I examine the cardinal issue that has reared its head in this trial, it is relevant that I first touch on some questions that are impossible to ignore and which are remarkably important.

 

I must first comment on the threshold issue of jurisdiction, which argument was set in motion by the Defendant’s Counsel. It is an elementary principle of law that Jurisdiction is the lifeblood of any adjudication, hence, whenever it is challenged, the general rule is that the objection is taken first to resolve the challenge before taking any step in the substantive matter. See OLUTOLA v UNILORIN (2004) 18 NWLR (PT.905) P.416; OGBORU & ANOR v UDUAGHAN & ORS (2012) 2-3 SC, P.66; A.G. LAGOS STATE v DOSUMU (1989) 3 NWLR (PT.111) P.552. It will indeed be futile and a lack of wisdom for a court to embark on the journey of determination of the substantive matter without first seeking direction as to its jurisdictional competence.

 

Learned Counsel for the Defendants made submissions on this subject on the grounds that the Claimants’ action is bad for misjoinder of causes of action.  The Counsel for the Defendants points out that the Claimants’ action was incompetent because the contract of employment between the Claimants and the Defendants is personal to each of the Claimant, hence a joint suit to enforce the alleged grievance against the Defendants is defective.

 

Now the term ‘cause of action’ has been defined severally by the Courts as ‘the entire set of circumstances giving rise to an enforceable claim. It is a fact or combination of facts which when proved would entitle the claimant to a remedy against the defendant’. In determining whether a cause of action exists in a case, the court has to look at and consider the facts as pleaded in the statement of claim filed by the Claimants on which the claims made are predicated. The facts must be such that prima facie, they show a right in the Claimant which has been violated or infringed upon by the acts of the Defendant that would entitle the Claimant to approach the court for remedy. AYABODE v BALOGUN (1990) 5 NWLR (pt.151) P.392; SPDC LTD v NWAKA (2003) FWLR (PT.144) P.506; SEAGULL OIL LTD & ORS v MONI PULO LTD & ORS (2011) 15 NWLR (PT.1271) P.525. Whatever the case, the law is trite that the Court has to look at the Statement of Claim to determine any question regarding cause or causes of action. From the Statement of Facts filed before this Court, the Claimants averred that they were employed by the Defendants, and that they were all Permanent Secretaries before their compulsory retirement by the 5th Defendant. They are aggrieved by these incidents and they have come to court seeking certain reliefs. These are alleged claims against the Defendants made by the Claimants. By these averments, I have no doubt that there exist a cause of action by the individual Claimant against the Defendants and which are similar in nature.

 

I have endeavoured not to dwell a lot on the definition of cause of action, since the gamut of the Defendant’s Counsel’s argument is the alleged joining of several causes of action. It must be noted at this point that it is also the position of this Court as observed by the Defendants’ Counsel in the case of CCB (NIG) LIMITED v ROSE (1998) 4 NWLR, (PT.544) PG.37; that in the realm of employment relationship, even though more than one of the Claimants are employed on the same day and under the same terms and condition, their contract of employment is personal and domestic to each of them.

 

Firstly, however, by the Rules of this Court, the joinder of Claimants (or Defendants, as the case may be) is permissible provided they can show that they possess a common grievance against the Defendant(s) for which they are entitled to reliefs, whether jointly or severally. The real object of seeking to join Claimants in an action is to facilitate the trial of the claim or claims against the Defendant(s). This is clearly brought out by the provisions of Order 13, Rule 1 of the NICN Civil Procedure Rules, which provides to the effect that:

 

“All persons may be joined in one action as Claimants in whom any right to relief is alleged to exist whether jointly or severally and judgment may be given for such Claimant(s) as may be found to be entitled to relief and for such relief as the Claimant may be entitled to without any amendment”.

 

It is crystal from the provisions above that a proper joinder in accordance with the Rules requires all the persons joined as Claimants to show the existence of a common grievance or common interest as well as a right to relief or reliefs against a common Defendant or Defendants, so that judgment may be given in their favour jointly, severally or in the alternative without any amendment. The inference is that the Claimants must make a common claim against the Defendant which must have accrued to the Claimants jointly at the same time as a result of which they seek particular relief(s) from the said Defendant (s).

 

Secondly, Order 13, Rule 11(1) of the NICN (Civil Procedure) Rules allows for the joining of causes of action where the various persons involved as Claimants have the same interest in the suit. Hence, one or more of such Claimants may sue on behalf of or for the benefit of all persons so interested.

 

A cursory look at the facts of the case reveals that the cause of action which gave rise to this suit accrued to the Claimants jointly and at the same time. This was also captured from the evidence of CW1, CW2 and DW2 who testified under oath that the Claimants were removed as Permanent Secretaries and were equally compulsorily retired at the same time. This obviously gives rise to a common interest, which could lead a group of persons, the Claimants on record in this case, to sue jointly as Claimants in this suit.

 

The object of the provisions of the NICN Rules afore-cited therefore, is to prevent a multiplicity of actions against the Defendant whom the Claimants allege they are entitled to obtain the same relief from. This is also to prevent the flooding of our Courts with similar or related claims which can easily be dispensed in a single action.

 

The cases of HYSON (NIG) LIMITED v IJEOMA & 12 ORS and CCB (NIG) LIMITED v ROSE (citations provided) relied upon by the Defendant’s Counsel cannot support the case of the Defendant. Learned Counsel’s further reliance on the case of DURBAR HOTEL PLC v ITYOUGH (2011) 9 NWLR (PT.1251) PG.41 rather gives weight to the position of this Court on the issue.

 

Therefore, its my ardent belief that this suit was rightly instituted by the claimants. The argument canvassed by learned counsel to the defendants for misjoinder of causes of action is a total misconception of the law, and same is hereby dismissed. This court has the jurisdictional vires to adjudicate over this matter. I so hold.

 

On the first issue of whether the claimants’ employment had any statutory flavour such that it could only have been determined by the Defendants’ strict compliance with the provisions of the Rivers State Civil Service Rules and Regulations and the provisions of the Pension Act, it is in evidence that the Claimants were employed at different times as Civil Servants at different Ministries, Department and Agencies of the Rivers State Government before some of the Claimants were absorbed in the mainstream of the Civil Service of Rivers State by the Rivers State Civil Service Commission and were subsequently appointed as Permanent Secretaries. See Exhibits CW001, CW005, CW004, CW006, CW010, CW011, CW016, CW017, CW018, CW020, CW023, CW025, CW027 and CW028.

 

Having being appointed as Civil Servants, their appointments were regulated by the Rivers State Civil Service Rules and Regulations. I find therefore that the Claimants’ employment was regulated by the Civil Service Rules of Rivers State made pursuant to the provisions of Section 197 of the 1999 Constitution and the Pension Reforms Act and as such this confirms that their appointment is one clothed with statutory flavour.

 

An employment is said to have statutory flavour when it is protected or regulated by statute as in the case of the Claimants in this case. The Claimants are public servants of Rivers State and their employment had statutory flavour. See the cases of Olaniyan vrs University of Lagos (supra); Federal Civil Service Commission vs. Laoye (Supra); Eperoku vs University of Lagos (2004) 16 WRN 90; Bakare vs Lagos State Civil Service Commission (1992) 10 SCNJ 173; Ogieva vs. Igbinedion (2004) 49 WRN 149 at 131 Held 2; Udo vs CSNC (2001) 14 NWLR (pt. 732) 116; Geidam vs N.E.P.A (2001) 2 NWLR (Pt. 696) 45 and NITEL Plc. vs. Ocholi (2001) 10 NWLR (pt. 720)  188. Under the Rivers State Civil Service Rules and Regulations, Pensions Act, that governed the claimants’ appointment, their employment was to be subsisting for 35 years of service or on attainment of 60 years. The claimants were compulsorily retired before their respective retirement dates.

 

The content of Exhibit CW008 has a tinge of disciplinary flavour which requires the observance of the Civil Service Rules and Regulations. The appointment of the Claimants was a permanent and pensionable employment which presupposes that they were entitled to continue until the retirement age of 60 years or 35 years in service as provided by the Pensions Act. It is therefore clear that the Claimants were prematurely retired. Compulsory retirement of a Civil Servant compels the inference that the Civil Servant is being subjected to disciplinary action for the commission of any crime or misconduct. In the case of the claimants in this case, there is no evidence that they committed any crime, offence or misconduct. If any disciplinary action is to be taken against them it must be in full compliance with the relevant statute, rule or regulation. See Iderima vs RSCSC (supra) and Shitta-Bey vs Federal Public Service Commission (Supra). Obviously, the Claimants were not retired in accordance with the Civil Service Rules and Regulations and neither was the proper procedure for the compulsory retirement of the Claimants followed in this matter. The Claimants are Civil Servants therefore, they cannot be retired at the pleasure of the Governor or without compliance of the Rivers State Civil Service Rules and Regulations which governed their appointment. It is well settled law that when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See UNTHMB vs Nnoli (1994) 8 NWLR (pt. 363) 376. By virtue of the provisions of Section 202 of the 1999 constitution, it is the Rivers State Civil Service Commission that is empowered to discipline the Claimants and this is not subject to the direction and control of any authority or person. See the case of Olaniyan vs University of Lagos (supra). Their tenure was subject to the relevant statutes and regulations made thereon and not subject to the whims and caprices of the Defendants. See Nepa vs Ango (2001) 15 NWLR (Pt. 737) 627. Since the defendants did not comply or refuse to follow the procedure provided by the Civil Service Rules and Regulations of Rivers State, their action in purporting to retire the Claimants is a nullity. I so hold. I resolve the 1st issue in favour of the Claimants.

 

I now come to Issue No. 2. This issue deals essentially with the fact of whether the Governor of the State has constitutional power to retire a career Civil Servant, in this case the Claimants by virtue of the provisions of Section 208 (1) of the 1999 Constitution without recourse to the Civil Service Rules and Regulations of Rivers State. A convenient point to begin is a careful examination and consideration of the provisions of Section 208 of the 1999 Constitution. The section provides:

 

“(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 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 Servant of the State. (c) Permanent Secretary of other Chief executive in any Ministry or Department of the Government of the State howsoever 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 the State when the Governor ceases to hold office.

 

From the provisions of Section 208 (1) of the 1999 Constitution, two expressions are significant and paramount, these are: “(a) “to appoint” (b) “to remove”. Whereas there is no dispute or controversy as to the power of the Governor to appoint persons to hold or act in the offices stated under Section 208 (2) of the 1999 Constitution, the parties vehemently disagree as to the definition and meaning of the expression “to remove”, under Section 208 (1). It is the contention of the Claimants that the word “to remove” does not mean “retirement” and does not include “retirement”. Learned counsel for the Claimants submitted that the word “to remove” and “retirement” mean different things. On the other hand, learned counsel for the Defendants submitted that the word “to remove” under Section 208 (1) of the 1999 constitution include termination, dismissal, and retirement. 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 Blacks Law Dictionary (with pronunciations) 6th Edition but 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.” Therefore, the expression to remove is not as all embracing. 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. The claimants were appointed to the post of Permanent Secretaries on the recommendation of the Rivers State Civil Service Commission and were given letters to that effect. See exhibits CW001 – CW028.

 

CW1 and CW2 testified that their employment was governed by the Rules and Regulations of Civil Service Commission of Rivers State. Also testified that the required age for retirement for Civil Servants is 60 years or 35 years in service whichever comes first. This is also made abundantly clear in paragraph 2 (2) of Part II of the 3rd Schedule to the 1999 Constitution. Therefore, the Governor of Rivers State having appointed the Claimants (Permanent Secretaries) upon the recommendation of Civil Service Commission of Rivers State as far as they remain in the service, the Civil Service Rules and Regulations guide their appointment and matters of their discipline. See also the provisions of Section 202 of the 1999 Constitution which provides as follows: “In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person.” The above provision puts the matter to rest and leaves no one in doubt as to which authority is responsible for the discipline of the Civil Servants of the State. The case of Athanasius Kalada Hart vs the Military Governor of Rivers State (1976) 11 SC 211 is illustrative on the position of the law. The facts of the case are quite simple. Under the old constitution of 1963, the Civil Service Commission was vested with the power to appoint and dismiss Senior Officers in the Civil Service. The Military Governor of the State assumed the power and under it purported to dismiss Mr. Hart from the Civil Service. The officer challenged the Governor’s action in a court, requesting that his dismissal by the Governor be quashed by certiorari being outside the jurisdiction of the Governor. When the case reached the Supreme Court, Fatayi-Williams, JSC, said:

 

“The power to dismiss (The appellant) as a public officer from the Public Service of the State or to exercise disciplinary control over him as such officer is vested by the Constitution in the Public Service Commission of the State. That being the case, it seems to us that, by referring the disciplinary aspect of the matter to the Military Governor for a decision as the Public Service Commission of the Rivers State had done in the case in hand, the Commission had abdicated its constitutional responsibility in the matter. There is no doubt that what the Military Governor did in the case in hand was ultra vires his conditional power. This renders his order that the appellant be retired from the public service a nullity.”

 

It is therefore, not enough that a statute has conferred a particular power on a public functionary; it is of the essence that the recipient should be capable of exercising such power both in fact and in law. On the phrase “without prejudice” to the power vested in the Governor under paragraph 2 (1) Part II of 3rd Schedule. 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. It appears that the parties conveniently lost sight of paragraph 2 (2) of the same provision. It provides: “2 (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 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.” By virtue of the provisions of Paragraph 2 (2) quoted above the Commission shall not exercise any of its powers under Sub-paragraph 1 except after consultation with the Head of the Civil Service of the State. And evidence was not led by the Defendants to show that the 5th Defendant had indeed consulted the Head of Service before the Claimants were compulsorily retired. 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 as the learned counsel for the Defendants did in their argument. In the case of Attorney-General, Federation vs. A.N.P.P. (2003) 15 NWLR (Pt. 844) 600, it was held that the court is obliged to read the constitutional provision as a whole. See also Asogwa vs Chukwu (2003) 4 NWLR (Pt. 811) 540. In the instant case the court must consider the provisions of section 208 (1), 2 (a) & (b), (3), (4), (5) and the proviso thereto, together. It should be noted that the powers of the Governor to appoint and to remove persons pursuant to Section 208 of the 1999 Constitution is not absolute. He must have regard to the provisions of Section 208 (3) and (4) on the issue of appointment and Subsection (5) when it comes to his power to remove persons from office. For instance, under section 208 (3) it is provided that an appointment to the office of the Head of the Civil Service of the State shall not be made except from among Permanent Secretaries or equivalent rank in the Civil Service of any State or of the Federation. Furthermore, by virtue of Section 208 (4) the Governor in exercising his power under Section 208 shall have regard to the diversity of people within the state and need to promote national unity.

 

Now, in the exercise of power of Governor to remove persons so appointed from such offices mentioned in Subsection (2), the Governor must have regard to the provisions of Section 208 (5) and the proviso made thereunder. Under Section 208 (5) a clear distinction is made as to the category or class of officers.  These are: (a) Officers who hold their tenure of office at the pleasure of the Governor; and (b) Civil Servants or Public Servants who do not hold their tenure of offices at the pleasure of the Governor. The provisions of Section 208 are clear and unambiguous and therefore they must be given their natural and ordinary grammatical meaning. If the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, as the words themselves in such case best declare the intention of the Legislature. See Mwana vs. U.B.N. Plc. (2003) 16 NWLR (pt. 846) 218 and Buhari vs Obasanjo (supra) at page 412. 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 Claimants) or other Chief Executive as aforesaid are persons who have been appointed from the Public Service of Rivers 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 Claimants are removed from office as Permanent Secretaries by the Governor, they should be returned to the Public Service of the State in any other capacity, in any Ministry or Department of Rivers State.

 

Let me state here that Political Appointees are officers who hold their tenure of office at the pleasure of Governor. This does not include Civil Servants or persons who have been recruited from Public Service of the Federation or of the State.

 

Permanent Secretaries (such as the Claimants) 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.  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). If the Governor does not want the Claimants as Permanent Secretaries they should be returned to the Civil Service. This is made abundantly clear under the proviso to Section 208 (5) of the 1999 Constitution which states as follows: “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.” If the Claimants are to be retired compulsorily from the Civil Service of Rivers State, then it must be done in accordance with the Civil Service Rules and Regulations. See the cases of Federal Civil Service Commission vs. Laoye (supra); Olaniyan vs. University of Lagos (supra); Akintemi vs. Onwumechili (supra); Aiyetan vs. N.I.F.O.R (1987) 3 NWLR (pt. 59) 48 and Iderima vs. R.S.C.S.C. (supra). Security of tenure and right of an employee to the benefit of retirement are the most powerful inducement for entering into the Civil Service. See Morakinyo vs Ibadan City Council (1964) 1 All NLR 219. As stated by courts many times this country has a great reputation that its Civil Servants can enjoy a tenure of office to their retiring age from their probationary period if they are efficient and have good character and are not incapacitated in the functions of their office by any physical or mental infirmity. The Civil Service Rules and regulations of Rivers State, invest in the Claimants as Civil Servants a legal status and they can only be removed properly or legally as provided under the said Rules and Regulations.

 

It is for the above reasons that I reach the conclusion that the Claimants who were appointed by the Rivers State Civil Service in the established and, pensionable cadre and particularly by virtue of Section 208 (5) and the proviso thereto of the 1999 Constitution was not employed at the pleasure of the Governor. Although the expression “Political Appointee” is not defined under the Constitution, it is clear from the provisions of Section 208 (5) that the expression means nothing more than the officers whose appointments are made pursuant to Section 208(2) (a) and (b) who hold offices at the pleasure of the Governor and shall cease when the Governor ceases to hold office. The officers referred to above must be distinguished from persons who are appointed from the Public Service of the Federation or the State who shall be entitled to return to the Public Service of the Federation or the State when the Governor ceases to hold office. The Claimants therefore are not Political Appointees, and are to all intent and purposes Civil Servants of the Rivers State Civil Service subject to the Civil Service Rules and Regulations.

 

Since Shitta-Bay’s case, officers on pensionable cadre of our Civil Service whose terms and conditions of service are governed by the Civil Service Rules made under the Constitution, and therefore having a Constitutional flavour, acquired a distinct status which places their employment over and above the common law relationship of master and servant. See F.C.S.C. vs Laoye (supra). Therefore the Claimants still has the legal right to remain in office.

 

It is of legal importance to state that if a right has been infringed whether it is a fundamental right or a statutory right and the aggrieved party comes to the court for reinforcement of the right, it will not be given complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. It is the duty of the court to order a proper remedy. Ubi jus ibi remedium. In this case, the claimants are entitled and indeed have a legal right to remain in Civil Service until they retire at the age of 60 years or after rendering services for 35 years in the Civil Service. Having found that the retirement of the Claimants was illegal, null and void they are entitled to be reinstated to their substantive career position as Permanent Secretaries in the Civil Service of Rivers State. See Shita-Bay vs Federal Public Service Commission (1981) 1 SC 40 at 62 – 64. That being the case it is unnecessary to consider the claim for damages (Relief 7) of the Claimants’ claims. I resolved the second issue in favour of the Claimants. I so hold.

 

On the third issue of whether the Claimants are entitled to the reliefs sought, in civil proceedings the burden of proof shall be discharged on the balance of probabilities. See Section 134 of the Evidence Act 2011. Based on the reasons I stated earlier,  I am satisfied from the evidence before me that the Claimants have proved their case and are entitled to some of the reliefs sought which are available under the law with regards to wrongful termination of appointment clothed with statutory flavour. Once a dismissal or termination of such employment is declared unlawful or null and void, there is nothing legally standing in the way of such employee to having his or her job or office back with all the attendant rights, privileges and benefits. In other words, the claimant is entitled to be restored to his status quo ante. See Olufeagba & Ors vrs Abdul-Raheem & Ors (2009) 18 NWLR (Pt. 1173) pg 384. The rationale behind this conclusion is that if the claimant had remained in service up till date, he would have earned his salaries, allowances and all other benefits if his appointment was wrongly terminated. This line of reasoning was also captured in the case of Olalekan vrs Management Board, UNIMAID Teaching Hospital (2012) LPELR – 20099 (CA) where the court per OMOLEYE J.C.A, held:

“The law is settled, where an employee’s service is protected by statute and his employment is wrongfully terminated as in the instant case, he would be entitled to reinstatement to his office and in addition, damages representing his salaries during the period of his purported dismissal. This is because the appellant as stated above is in a permanent and pensionable cadre of the Respondent’s establishment. His office is not at the pleasure of the Respondent. Rather his appointment is protected by the provision of the Act.”

 

Consequently, the Claimants herein should be immediately re-instated to their status quo ante and are entitled to the payment of their salaries and entitlements from the date of the purported termination of their employment till date. This will suffice as the attendant cost of damages for the wrongful termination or compulsory retirement of the Claimants by the 5th Defendant.

 

However on the issue of damages (Relief 7 of the Claimants’ claims), it is settled law that a wrongfully terminated or dismissed Claimant cannot get both re-instatement and damages at the same time; it must be one or the other. See PTI vrs Nesimone (1995) 6 NWLR (Pt. 402) at 479; Onaja vrs African Petroleum Ltd (1991) 7 NWLR (Pt. 206) at pg 691. I therefore hold that the Claimants cannot get both at the same time, therefore the Claimants’ relief (7) as to damages must fail like a pack of cards and same is hereby dismissed. In all I resolved all the three issues formulated in favour of the Claimants. I grant all the Claimants’ reliefs with the exception of relief (7).

 

Before my ink runs dry, let me briefly comment on the conduct exhibited by the Defendants that despite the fact that this matter is subjudice, parties had adopted their Final Written Address before judgment, the Claimants were forcefully evicted from their official residence despite the fact that the Claimants had earlier filed a Motion for Interlocutory Injunction, and which also forms part of the claims of the Claimants (relief 5). This brazen attitude is unacceptable at this 21st century and its condemnable.

 

For the purpose of clarity and for the reasons stated in this judgment, I hold as follows:

 

  1. I declare that the purported approval of the compulsory retirement or the retirement of each of the Claimants “compulsorily” and with “immediate effect” from the Rivers State Civil Service by the Defendants particularly the 5th Defendant through press release on the 20th November, 2015 is unlawful, illegal, unconstitutional, null and void.

 

  1. I declare that each of the Claimants is still a member or a serving member of the Rivers State Civil Service of the rank and status of Permanent Secretary and entitled to the perquisites of office including but not limited to salaries, allowances, emoluments and accrued/accruing benefits associated with the office of Permanent Secretary pursuant to their appointments as Permanent Secretaries having not been lawfully, legally and constitutionally determined in accordance with the extant Public Service Rules and Laws applicable to the Rivers State Civil Service.

 

 

  1. I hereby set aside the purported approval of the compulsory retirement or any retirement compulsorily or any purported retirement of the Claimants with immediate effect from the Rivers State Civil Service by the Defendants particularly the 5th Defendant through the press release on the 20th November, 2015 or any other date.

 

  1. I directed the 1st – 5th Defendants, particularly 2nd – 3rd Defendants not to withhold, seize or freeze the payment to the Claimants of their respective salaries, entitlements, benefits, allowances and other properties due to them as serving Permanent Secretaries of the Rivers State Civil Service. And also to pay them all their arrears of salaries from 20th November, 2015 to date.

 

 

  1. I order that the Claimants be given a befitting accommodation equal to that of a Permanent Secretary in the Rivers State Civil Service or to be paid an amount commensurate to that having been forcefully evicted from their official quarters during the pendency of this suit despite the fact that it forms part of the Claimants’ claims.

 

  1. I hereby restrained the Defendants, particularly 1st, 2nd, 4th and 5th Defendants from serving on the Claimants any purported Letter of Retirement or Compulsory Retirement or removing the Claimants from the Civil Service of Rivers State, the Claimants having not attained their respective retirement stipulation either on grounds of age or length of service except in accordance with the due process of law.

 

 

  1. I declined to make an order for damages, and same relief is hereby dismissed.

 

  1. All the terms of this Judgment must be complied with within 30 days from today.

 

Parties shall bear their respective costs.

 

Judgment is hereby entered accordingly.

 

 

 

———————————————————————

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

YENAGOA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA

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