Mrs. Alaliba Chirstine Dukubo -VS- Attorney General, Rivers State & 2

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN — JUDGE

DATE: 2^ND DECEMBER, 2019 SUIT NO: NICN/YEN/128/2015

BETWEEN:

MRS. ALALIBA CHRISTINE DOKUBO ————– CLAIMANT

AND

ATTORNEY GENERAL RIVERS STATE
HEAD OF SERVICE, RIVERS STATE DEFENDANTS
RIVERS STATE CIVIL SERVICE COMMISSION

JUDGMENT

This suit was commenced by the Claimant vide Originating Summons on 4^th November, 2015. On the 14^th day of July, 2016 this court ordered parties to exchange pleadings in view of the contentious nature of the suit. The Claimant filed the Statement of Facts dated and filed on 26^th day of April, 2016, wherein she claims the following reliefs against the Defendants:

A declaration that the retirement of the Claimant from the service of the Rivers State Government with effect from 27^th January, 2008 through the 3^rd Defendants’ circular dated 14^th August 2015 is null and void.

An order of this Honourable Court setting aside the defendant’s circular of 14^th August 2015 and reinstating the Claimant to her position in the service of the Rivers State Government.

An order of this Honourable Court directing the Defendants to pay to the Claimant all her salaries and allowances from 14^th August 2015 to the date of her reinstatement into the services of the Rivers State Government and thereafter in accordance with the Rivers State Government Scheme of Service.

The Defendants’ Statement of Defence/Counter-Claim was dated 6^th May, 2016 and filed 9^th May, 2016.

It is pertinent to note that, the Claimant filed a Reply to the Defendants’ Statement of Defence/Defence to Counter-Claim together with a further deposition of the claimant on the 17^th day of May, 2016.

On the 28^th of November 2017 when the matter came up for trial, U. B. Ubaika Esq. appeared with J. Dala Esq. for the Claimant, while F. C. Okoronkwo Esq. (State Counsel, Rivers State Ministry of Justice) appeared for the defendants. The Claimant opened her case by testifying for herself as CW1, adopted her witness depositions on oath made on 26^th April, 2016, and 17^th day of May, 2016. She then tendered documents which were admitted and marked as exhibits CW1, CW2, CW3, CW4 and CW5. The witness was then cross-examined and re-examined after which the claimant closed her case on the 18^th day of April, 2018. The case was thereafter adjourned for defence.

The defendant opened their defence on 4^th October, 2018 when U. B. Ubaika Esq. appeared for the Claimant while H. N. Amadi Esq. (Principal State Counsel, Rivers State Ministry of Justice) appeared for the defendants. One Emmanuel Evans Bob Dappa, an Administrative Officer with the Rivers State Civil Service Commission testified as the defendants’ sole witness. DW adopted his Witness Statement on Oath made on 9^th May, 2016. The witness was then cross-examined by the learned Claimant’s counsel without any re-examination. The Defendant then closed their case on 25^th day of October, 2018. The matter was thereafter adjourned for adoption of final written addresses.

On the 15^th of October, 2019, when this case came up for adoption of final written addresses, U. B. Ubaika Esq. appeared for the Claimant while H. N. Amadi Esq. (Principal State Counsel, Rivers State Ministry of Justice) appeared for the Defendants. Parties thereafter adopted their respective Final Written Addresses. The Defendants’ Final Written Address was dated 5^th February, 2019 and filed on 7^th February, 2019. The defendants also filed a Reply on Point of Law also dated 5^th February, 2019 and filed on 7^th February, 2019.

Both processes were deemed to have been properly filed and served on the 15^th October, 2019. The Claimant’s Final Written Address which was earlier in time was dated 10^th December, 2018, filed on 11^th December, 2018 but deemed as having been properly filed and served on 7^th February, 2019.

With the adoption of the parties’ Final Written Addresses, the suit was then adjourned for judgment.

THE CASE OF THE CLAIMANT:

The Claimant was employed by the Rivers State Government on 19^th January, 1973 as a Clerical Officer.

According to the claimant, shortly after her appointment she sought and obtained approval for study leave without pay for three (3) years from 1974 – 1977. That for unspecified and unforeseen circumstances she spent a total period of eleven (11) years (June 1977 to April 1988) outside the three years approved for her.

It was further pleaded by the Claimant that upon the completion of her studies, she was re-absorbed into the service by the 3^rd Defendant vide letter of 13^th October, 1989 and the period of eleven (11) years she over-stayed her study leave was approved as a period of break-in-service. She wrote to the Defendants letter of 24^th February, 2009 seeking for clarification on the status of her employment and the 3^rd Defendant replied vide letter of 26^th May, 2009 and clarified that the eleven year break-in-service meant that her tenure in the civil service extends up to 27^th January, 2018 which is her date of retirement and not 1^st March, 2009.

In January 2009 the Claimant attained the post of substantive Permanent Secretary in the Ministry of Finance and was made the Acting Chairman of the State Board of Internal Revenue which position she occupied till January, 2012. On 8^th February, 2012, the Claimant again wrote to the Defendants and followed same with a reminder on 15^th March, 2013, seeking for further clarification on the status of her employment. That the 3^rd Defendant vide letter of 13^th August, 2013 re-affirmed that the claimant’s date of retirement from the service of the Rivers State Government was 27^th January, 2018 or any date she attains 60 years of age (which ever that comes first).

According to the Claimant, she continued to perform her duties as the Permanent Secretary, Ministry of Finance until her attention was drawn to a Circular of the 3^rd Defendant dated 14^th August, 2015 indicating that she had been retired from service with effect from 27^th January, 2008 on the ground that she had spent 35 years in service even when she had only spent 32 years and was less than 60 years of age having been born on 12^th May, 1958. That her retirement is irregular and unlawful.

DEFENDANTS’ CASE:

The Defendants who admitted paragraphs 1, 2 and 3 and denied the remaining paragraphs of the Statement of Facts, averred that the Claimant absented herself from duty for eleven (11) years outside the three (3) years approved for her study leave. That the three years study leave was from 1974 to 1977 but the Claimant only resumed work in 1988 after she had taken up employment in Pan African Bank as an accountant.

The Defendants further averred that Claimant’s date of first appointment is 27^th October, 1973 and she would have served for thirty five (35) years by 27^th October, 2008 when her service would have lapsed automatically. That the expression ‘break-in-service’ was punitive against the Claimant and never meant to extend her period of service since she failed to apply for ‘condonation’ having stayed away from service for a long time. That her retirement is in line with the extant provisions of the Rivers State Contributory Pension Scheme for Employees in the Public Service Law No. 7 of 2009.

DEFENDANTS’ COUNTER-CLAIM:

According to the Defendants/Counter-Claimants, the Claimant/Defendant to Counter-Claim took salaries and other allowances for a period of seven (7) years and seven (7) months totaling Ninety One (91) months after the lapse of her employment on 27^th January, 2008. They are therefore counter-claiming for Ninety One (91) months’ salary being the amount the Claimant/Defendant to Counter-Claim received after her employment ended on 14^th August, 2015.

DEFENCE TO COUNTER-CLAIM:

With respect to the Counter-Claim, the Claimant/Defendant to Counter-Claim denied receiving salaries and other allowances outside her statutory period of employment and urged the court to refuse the Counter-Claim.

DEFENDANT’S SUBMISSIONS.

The Defendants distilled four (4) issues for determination, to wit:

Whether the Claimant has retired from service of the Government of Rivers State; having put in 35 years of service as required by the Public Service Rules and as shown on Defendants Circular CCSC/6/11,115/92 dated 14^th August, 2015, marked as Exhibit CW5.

Whether the Claimant is not in breach of the Public Service Rule 100228(b), when she over stayed her study leave for a period of Eleven (11) years without approval.

Whether the period of study leave without pay is regarded as a break in service under the Public Service Rule.

Whether the Claimant has been able to prove that her retirement was wrongful, as to entitle her to the reliefs sought.

On issue one (1), learned counsel referred the court to exhibit CW5 and the provisions of Rule 020810(i) and (ii) of the Public Service Rules, 2009 Edition and argued that, the Claimant who was born on 12^th May, 1958 and her date of first appointment as 27^th January, 1973 had put in 35 years in service as at 27^th January, 2008. That the employment of the Claimant is one with statutory flavor referring the court to the case of Central Bank of Nigeria V. Igwilo (2007) All FWR (Pt. 379) 1385 at 1401 para C-E ratio 2. The court is therefore urged to resolve this issue in favour of the Defendants and hold that the Claimant retired compulsorily from service on 27^th January, 2008 having put in 35 years of service.

With regard to issue two (2), learned counsel argued that having over-stayed the period approved for her study leave the claimant was in breach of the Public Service Rule 100228(c), and the court should resolve issue two in favour of the Defendants.

With regard to issue three (3), learned counsel argued that, the period of study leave without pay is not regarded as a break-in-service, referring to Rule 100228(c) of the Public Service Rules 2009 Edition. That the court should resolve issue three in favour of the Defendants.

With regard to issue four (4), it is posited that the Claimant has failed to establish that her retirement from service is wrongful and is therefore not entitled to the reliefs being sought.

That the burden of proof is on the claimant who claims to have been wrongly retired to prove the wrongfulness of her retirement by placing before the court the terms and conditions of the contract of employment and show how the terms were breached by the employer. See Oforishe V. N.G.C. Ltd (2018) 2 NWLR (Pt. 1602) 44 at 61 paras D-E. That in the instant case, the Claimant having failed to discharge the burden placed on her by law is not entitled to the reliefs sought before the court, and the court should resolve issue four in favour of the Defendants.

The court is finally urged to dismiss the case of the Claimant and enter judgment in favour of the Defendants as per the Counter-Claim.

CLAIMANT’S SUBMISSIONS

The Claimant nominated two (2) issues for the determination of this court, to wit:

Whether the Defendants having expressly and unequivocally informed and held out to the Claimant that her retirement date in service will be 27^th January, 2018 or attainment of the age of 60 years (whichever comes first) can resile on same and retire the Claimant with effect from January 2008 by a circular on 14^th January, 2015.

If the answer to Issue 1 above is in the negative, whether the Defendants are not bound in law to reinstate the Claimant to her position in the service of the Rivers State Government.

On issue one (1) learned claimant’s counsel referred the court to exhibit CW1 and submitted that the claimant has shown that she was in the Rivers State public service and that her employment was statutorily covered referring to the cases of Central Bank of Nigeria V. Igwilo (2007) All FWLR (Pt. 379) 1385 at 1401 paras C-E ratio 2 and Attorney General Cross River State V. Okon (2007) All FWLR (Pt. 395) 370 at 393 para A ratio 3. See also section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rivers State Contributory Pension Scheme for Employees in the Public Service Law No. 7 2009.

That from exhibits CW3 and CW4, the defendants informed the claimant that her due date of retirement from service was 27^th January, 2018 or the date she would attain the age of 60 years of age (whichever comes first) which means that the period of 11 years the claimant overstayed her study leave is regarded as a break in service. That exhibit CW4 which is clear and unambiguous does not help the case of the defendants. See Milford Edosomwan V. Kenneth Ogbeyfun (1996) Vol. 36 LRCN 432 at 450; Mrs. Ethel David Orji V. Dorji Textile Mill Ltd & Ors (2010) Vol. 182 LRCN, 129 and Daniel Okonkwo V. Ogbogu & Anor (1996) Vol. 37 580 at 598 para E ratio 3.

That the defendants who had made the claimant to believe that she would retire from service in January, 2018 cannot unilaterally turn round to retire her before the due date of retirement as doing that will run contrary to the doctrine of estoppels by conduct. See Tika-Tore V. Abina (1973)45C 63(2) and Kwara Polytechnic Ilorin & Ors V. A. O. Oyebanji (2008) All FWLR (Pt. 447) 141 at 191 paras B-C, ratio 7 and the case of Bulet International (Nig) Ltd V. Olaniyi (2018) All FWLR (Pt. 943) 500 at 531 para H where the apex court held thus, “It would be very dangerous to allow a man over the age of legal infancy to escape from the legal effects of a document he has, after reading it signed it in the absence of an express misrepresentation by the other party of that legal effect.” See Ugwu V. Ararume & Ors (2009) All FWLR (Pt 377) 807 at 862 para B.

That the action of the defendants amounts to unfair labour practice and not in tandem with the law and is therefore null and void. See Dr. Taiwo Olorunba-Oju & Ors V. Prof. Abdul-Raheem & Ors (2009) All FWLR (Pt. 497) 1 at 46-47 paras E-C ratio 17. That exhibit CW5 being a general Circular and not a letter addressed to the Claimant has no force of law relating to the subject matter of this suit. See Maideribe V. FRN (2014) All FWLR (Pt. 717) 725 at 738-739 paras H-B. The court is finally urged to resolve issue 1 in favour of the Claimant.

With respect to issue two (2), it is posited that once a court finds that the retirement of a Claimant is wrongful, null and void, the consequential remedy is an order for reinstatement with all attendant rights and benefits. See CBN V. Igwilo (supra); Kwara State Polytechnic & Ors V. Oyebanji (supra), and Iderima V. Rivers State Civil Service Commission (2015) All FWLR (Pt. 285) 431 at 452 where it was held that, “Once the dismissal of a civil servant is declared null and void, the effect of such a pronouncement is that the civil servant was always and still a civil servant.”

The court is finally urged to grant the claimant’s claims before the court.

DEFENDANT’S REPLY ON POINT OF LAW.

With respect to paragraph 4.3 of the Claimant’s Final Written Address, it is submitted by the defendants that the provision of Rule 100228(c) of the Public Service Rules (2009) Edition is unambiguous on the issue of period of study leave not being regarded as a break in service, and that the Claimant overstayed her study leave by 11 years without approval which is not regarded as a break in service.

With regard to paragraph 4.5 of the Claimant’s Final Written Address, it is contended by the defendants that the Public Service Rule being the rule regulating the conduct of public servants including the claimant herein overrides any other document. That by the provisions of the Public Service Rules the Claimant had put in 35 years of service hence her compulsory retirement with effect from 27^th January, 2008.

With regard to paragraph 4.6 of the Claimant’s Final Written Address, it is submitted by the defendants that, contrary to the submissions of the Claimant, exhibit CW4 is not in conflict with the provisions of the Public Service Rules, and that even where there is a conflict, the provisions of the Public Service Rules override any other document including exhibit CW4.

That a claimant should succeed on the strength of his/her case and not to rely on any weakness in the defendant’s case referring to the cases of Umejioko V. Ezenanuo (1990) 1 NWLR (Pt. 126) 253 at 272; Kodilinye V. Odu (2003) 36 WRN 175 and Ayanru V. Mandillas Ltd (2007) All FWLR (Pt. 383) 1847 at 1849.

It is finally argued that the claimant has failed to discharge the burden placed on her by law and is therefore not entitled to the claims before the court.

COURT’S DECISION

Having carefully considered the pleadings, evidence and submissions of counsel for the parties, I am of the view that in order to avoid proliferation of issues for determination, the 3^rd issue nominated by the defendant is comprehensive enough and same shall be adopted in the determination of this suit, to wit:

Whether the Claimant has been able to prove that her retirement was wrongful, as to entitle her to the reliefs sought.

It is apposite to state from the onset that from the facts as pleaded by the parties and the evidence produced before the court, the following facts have been agreed upon by the parties and are therefore no longer in contention in this suit:

That the Claimant was employed by the Defendants on the 19^th day of January, 1973 as shown on exhibit CW1.

That approval was given to the Claimant to proceed on three (3) years Study Leave without pay with effect from 18^th September, 1974 as shown on exhibit CW2.

That the Claimant overstayed the period of study leave approved for her by eleven (11) years.

That the Claimant was reabsorbed into the Rivers State Civil Service vide letter dated 13^th October, 1989 (exhibit CW3).

The only point or area of divergence between the Claimant and the Defendants is the issue of whether or not the period spent on study leave should be regarded as a break in service thereby affecting the period or year the claimant would have retired from the service. While the Claimant contended that by exhibits CW3 and CW4 such period of study leave amounted to a break in her service and she would only be due for retirement on 27^th of January, 2018 after serving for 35 years, the Defendants’ contention is that the period the Claimant spent on study leave cannot be regarded as a break in service relying on the provisions of the Public Service Rules, hence her retirement from service with effect from 27^th January, 2008 vide exhibit CW5 was in order because she had served for 35 years from 27^th January, 1973 to 27^th January, 2008.

In the bid to establish her case, the claimant testified for herself as CW. She informed the court vide her depositions on oath made on 26^th April, 2016 and 17^th May, 2016 that, shortly after her employment by the defendant on 19^th January, 1973, she sought and obtained approval for study leave for duration of three (3) years from 1974 – 1977.

That due to unforeseen circumstances she spent eleven years outside the three years approved for her (June 1977 – April, 1988). That she was however reabsorbed into the service by the Defendants and the eleven years she spent outside the three years approved for her study leave was approved by the 3^rd Defendant as a period of break-in-service and this position was further confirmed by the Defendants through the 3^rd Defendant’s letter of 26^th May, 2009 which indicated the 27^th of January, 2018 as her date of retirement from service.

According to the Claimant, she rose to the rank of substantive Permanent Secretary in the Ministry of Finance and was appointed Acting Chairman of the Rivers State Board of Internal Revenue from January 2009 to January 2012 when she handed over to the new Chairman of the Board. That on 8^th February 2012 she wrote to the 3^rd Defendant concerning the status of her employment and the 3^rd Defendant in response to her reminder of 15^th March, 2013, wrote to her letter of 13^th August, 2013 and reaffirmed that her date of retirement from the service of the Rivers State Government was to be 27^th January, 2018 or any date she attained 60 years of age (whichever comes first). The Claimant said she continued performing her duties as Permanent Secretary, Ministry of Finance until her attention was drawn to a Circular of the 3^rd Defendant dated 14^th August, 2015 which retired her from service with effect from 27^th January, 2008 on the ground that she had spent 35 years in service even when she had spent only 32 years in service and was less than 60 years of age having been born on 12^th May, 1958. She therefore urges the court to grant her reliefs in this suit.

During cross-examination the Claimant answered that she was employed in 1973 as Clerical Assistant and the following year 1974 she proceeded on study leave for three years. That even though the leave was from 1974 – 1977, she did not come to the office for eleven years after the period of study leave and only resurfaced in 1989. That even though she had heard of Pan African Bank, she denied ever working for the said bank as an accountant during the period of eleven years she was not coming to work. That as a civil servant she knows that a person retires automatically from office after attaining 60 years of age or 35 years of service (any one that comes first), and that even though the circular retiring her from service was issued in August, 2015, her date of retirement was backdated to 27^th January, 2008. That she did not take any salary from the Rivers State Government for 7 months after her retirement, and she is no longer in service.

CW confirmed during re-examination that the document she referred to as letter of retirement is exhibit CW5.

The Defendants jointly called one Emmanuel Evans Bob Dappa (Senior Administrative Officer, Rivers State Civil Service Commission) who gave evidence as DW. The witness identified and adopted his deposition on oath made on the 9^th of May, 2016, wherein he informed the court that by virtue of his position he has access to records and information regarding this case, and that, the Claimant was employed by the Rivers State Government on 19^th January, 1973 as a clerical officer prior to her marriage in her maiden name: Miss Alaliba D. C. Wokoma. That the Claimant absented herself from duty for eleven years outside the period of three years approved for her study leave from 1974 – 1977.

According to DW, for the period of eleven years the Claimant abandoned her office she took up employment in Pan African Bank as an accountant and only returned to the Civil Service of Rivers State after the said bank had been liquidated and wound up. That Circular No. CCSC/6/11,115/92 dated 14^th August, 2015 which provides information, guidance and rules regarding the claimant’s period of service supersedes letters of 13^th October, 1989; 26^th May 2009 and 13^th August, 2013, and that the claimant’s statutory period of service lapsed on 27^th January, 2008 because the expression ‘break-in-service’ does not extend the claimant’s period of service as she failed to apply for condonation. DW further informed the court that the claimant took salaries and other allowances for a period of seven years and seven months after her employment lapsed on 27^th January, 2008. That the retirement of the claimant by the defendants is in line with the law and she is not entitled to the reliefs sought in this suit.

During cross-examination DW answered that exhibit CW4 was addressed to the claimant and there is no letter by the defendants reversing the date of retirement as stated in paragraph 2 of exhibit CW4 written by the Civil Service Commission where DW works. That the highest ranking officer in the Civil Service Commission of Rivers State is the Chairman. That exhibit CW5 which is a circular listed five persons and is not a personal letter to the claimant.

As earlier stated in this judgment, the main issue in contention is whether the period of eleven years the claimant overstayed her study leave should be regarded as a ‘break-in-service’ in which the claimant would be due for retirement on 27^th January, 2018 after serving for 35 years, or continuation of service to which she would be due for retirement on 27^th January, 2008 after 35 years of service.

Exhibit CW3 which is the letter that reabsorbed the claimant to service is very crucial in this regard and the said letter is hereby reproduced:

Our Ref: PP.9107/39 13^th October, 1989.

The Hon. Commissioner,

Ministry of Finance and Economic Planning,

Port Harcourt.

APPLICATION FOR REABSORPTION MRS. A.C.W. DOKUBO (NEE WOKOMA) CLERICAL OFFICER.

I am directed to refer to your letter No. PF/915/24 of 25^th September, 1989 on the above subject and to convey approval for the reabsorption of Mrs. A.C.W. Dokubo (Nee Wokoma) into the service in her former grade of Clerical Officer with effect from the date she reports for duty after this approval.

The eleven (11) years period i.e. June, 1977 to 12^thApril, 1988 in which Mrs. Dokubo overstayed her study leave without pay will be regarded as a break-in-service which will not attract pension benefits. Establishments Circular No.5/1984 is pertinent.

It should be noted that this officer’s advancement to a higher grade commensurate with her newly acquired qualification, depends on the existence of vacancies and her success at an interview to be conducted by the Civil Service Commission. She is however free to seek employment elsewhere, if she so desires.

Please inform Mrs. Dokubo accordingly and request her to sign an undertaking accepting our terms of reabsorption as stated above.

Copies of this letter are endorsed to the Accountant-General and Director of Audit for their information.

(sgd.) E. A. Opusunju (Mrs.)

For: Chairman, Civil Service Commission.

It may also be appropriate to reproduce exhibit CW4 which was written by the 2^nd Defendant and addressed to the Claimant in response to her letters of 8^th February, 2012 and 15^th March, 2013 which sought clarification on the status of her employment.

13^th August, 2013

Mrs. A. C. Dokubo, FCA

No. 2, Federal Housing Estate,

Rumueme,

Port Harcourt.

RE: CLARIFICATION OF EMPLOYMENT STATUS

I refer to your letter dated 8^th February, 2012 and subsequent reminder of 15^th March, 2013 on the above subject matter and wish to inform you that the Commission re-affirms that there was a break in your service and therefore upholds the contents of her letter Ref: CPSC/PP/14,742/118 of 26^th May, 2009 addressed to you.

Accordingly, your due date of retirement is 27^thJanuary, 2018 or the date you attain 60 years of age (whichever one that comes first).

The Commission regrets the delay in responding to your above referenced letters which was occasioned by the need for further thorough review of your matter.

4.You are by this letter advised to report to the Head of Service for deployment.

Best regards.

Sir Ngo Martyns-Yellowe

Chairman

The learned counsel to the Defendants has argued and rightly so, that the employment of the Claimant is one with statutory flavor or coloration and I couldn’t agree more with learned counsel on this point.

The law is trite with regard to the status of employees whose employments have statutory coloration that they do not hold office at the pleasure of their employers. Their employments are based on and regulated by statutes, rules or regulations which must be followed or observed before they are relieved of their appointments. The employer being a creature of statute must act within and under the powers conferred by the statute. See Central Bank of Nigeria & 1 Or. V. Mrs. Agnes M. Igwillo (2014) 4 ACELR 1 at 18-19; and Mr. Syed Qamar Ahmed V. Ahmadu Bello University (ABU) and 1 Or. (2018) 12 ACELR 22 at 44 where the Court of Appeal quoted Kutigi JSC (as he then was) in Mrs. Fakuade V. O.A.T.H.M.B. (1993) LPELR 1233(SC) as follows: “Where the conditions of appointment or determination of a contract is governed by the pre-conditions of an enabling statute such that a valid determination of the appointment of the appellant is predicated on satisfying such statutory provision, the contract is with a statutory flavor.” The court went on at page 45 to quote the decision of the Supreme Court in the case of UNTHB V. Nnoli (1994) 8 NWLR (Pt. 363) 376 as follows: “When an office or employment has statutory flavor in the sense that its conditions of service are provided for by statute or regulations made thereunder, any person in that office or employment enjoys a special status over and above the ordinary master and servant relationship in the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or repudiation or tenure of office of that employee will be declared null and void.”

Having stated that the employment of the claimant enjoyed statutory protection, may I state that having assessed or evaluated the evidence in this suit, I find it difficult to agree with the Defendants that the retirement of the claimant effective 27^th January, 2008 on the ground that she had served for 35 years is in line with the law and in order. I say this because exhibits CW3 and CW4 written by the 3^rd Defendant on 13^th October, 1989 and 13^th August, 2013 respectively, emphatically regarded the eleven years from June, 1977 to 12^th April, 1988 during which the claimant overstayed her approved study leave without pay as a break-in-service which will not attract pension. In fact, while exhibit CW3 made reference to Establishment Circular No.5/1984 as the basis of the decision, exhibit CW4 apart from reaffirming the Defendants’ earlier position went on to state that the claimant’s due date of retirement would be 27^th January, 2018 or any date she clocked 60 years of age (whichever comes first).

The million naira question therefore is what must have changed between 13^th August, 2013 when exhibit CW4 was issued by the 3^rd Defendant confirming its earlier decision on the status of the claimant’s employment and 14^th August, 2015 when exhibit CW5 was issued by the same 3^rd Defendant retiring the claimant with effect from 27^th January, 2008 on the ground that she had served for 35 years.

The learned counsel to the Defendants has argued strenuously that by the provisions of Rule 100228(c) of the Public Service Rules (2009) Edition the period of study leave without pay cannot be regarded as a break in service. While I agree with learned counsel that such is the provision of the Public Service Rules, what learned counsel failed to tell the court is whether the said Public Service Rules 2009 Edition was the applicable rule/regulation as at when approval was given to the claimant to proceed on three years study leave without pay. I say this because if the said Rule of 2009 was not the extant regulation when the approval was given then it cannot be applied retrospectively against the claimant. For the 3^rd defendant to have made reference to Establishment Circular No.5/1984 in exhibit CW3 as the basis for deciding that the period of eleven years was a break in service goes to show that, that was the position then as against the 2009 Rule relied upon by the Defendants. In the case of The Shell Petroleum Development Company of Nigeria Limited V. Chief Joel Anaro & Others (2015) LPELR-24750(SC) the apex court stated thus on giving statutes retrospective operation:

“There is a general presumption against retrospective legislation. It is presumed that the legislature does not intend injustice or absurdity. Courts therefore lean against giving certain statutes retrospective operation. Generally, statutes are construed as operating only in cases or on facts, which come into existence after the statutes were passed unless a retrospective effect is clearly intended.”

The Defendants who also contended that the claimant allegedly took up an appointment as an accountant with Pan African Bank and only returned to the civil service after the said bank had been liquidated did not provide any evidence to support this allegation as the claimant emphatically denied ever working for the said bank. I do not therefore think the defendants have been able to convince this court that the Claimant worked with Pan African Bank during the period of eleven years she overstayed her study leave.

It is therefore my considered view that, on the strengths of exhibits CW3 and CW4 issued by the 2^nd Defendant indicating that there was a break in the service of the claimant, her due date of retirement was to be either 27^th January, 2018 during which she would have served for 35 years, or 60 years of age (whichever comes first). Going by the claimant’s date of birth 12^th May, 1958 she would have been due for retirement on ground of 60 years of age on or about the 12^th day of May 2018; meaning that the 27^th January, 2018 which comes first would be her due date of retirement on ground of 35 years of service. It is therefore explicit that the claimant was prematurely retired with effect from 27^th January, 2008 vide exhibit CW5 dated 14^th August, 2015. Her retirement is therefore illegal and unlawful. I so find and hold.

Having held that the Claimant was retired illegally, it is pertinent to now consider the reliefs she is claiming in this suit.

Relief one (1) is for a declaration that the retirement of the claimant from the service of the Rivers State Government with effect from 27^th January, 2008 through the 3^rd Defendant’s circular dated 14^th August 2015 is null and void. I find merit in this relief and same is granted.

Relief two (2) is for an order of court setting aside the defendant’s circular of 14^th August 2015 and reinstating the claimant to her position in the service of the Rivers State Government. On this relief it is my decision that while the claimant’s retirement is illegal, null and void and the said retirement issued vide circular dated 14^th August, 2015 is hereby set aside, I find it difficult to agree with the claimant that she is entitled to the relief for reinstatement. While it is correct as argued by the Claimant that since her employment is one with statutory favour she should be entitled to claim of specific performance reinstating her to her position, however from the evidence before the court the claimant would have retired automatically from the defendants’ service on 27^th January, 2018 after serving for 35 years or upon the attainment of 60 years of age (whichever one comes first). It is in evidence that she was born on 12^th May, 1958. She is therefore above 60 years of age and it will be against public policy to restore her back to the service of the defendants. The relief for an order of reinstatement is therefore refused.

Relief three (3) is for an order of court directing the Defendants to pay to the claimant all her salaries and allowances from 14^th August, 2015 to the date of her reinstatement into the service of the Rivers State Government and thereafter in accordance with the Rivers State Government Scheme of Service. While I agree with the claimant that she is entitled to payment of salaries and other entitlements, I am however of the firm and considered view that such payment can only be from 14^th August, 2015 (when she was retired from service) to the date she was ordinarily due for retirement which I have held to be 27^th day of January, 2018.

For the purpose of clarity, it is the decision of this court that the case of the claimant succeeds in part, and the defendants are hereby ordered to compute and pay to the claimant all her salaries and other entitlements as a Permanent Secretary from 14^th August, 2015 to 27^th January, 2018 within 30 working days from the date of this judgment.

Since the Claimant did not ask for cost, I make no order as to cost.

Judgment is entered accordingly.

JUDGMENT ON DEFENDANTS’ COUNTER-CLAIM:

The Defendants/Counter-Claimants in paragraphs 13 – 15 of their joint Statement of Defence counter-claimed for the payment of penalty by the claimant/Defendant to Counter-Claim for exceeding her retirement period in service by ninety one (91) months, and also the payment of ninety one months’ salary being the amount received by the Claimant after her employment in the civil service of Rivers State lapsed on the 14^th August, 2015.

DW informed the court vide his deposition on oath that, the claimant who took salaries for period of seven years and seven months totaling period of ninety one (91) months after her employment lapsed on 27^th January, 2008 is liable to pay back to the Defendants/Counter-Claimants the salary she received for those ninety one months.

The Claimant/Defendant to Counter-Claim however denied the allegation of receiving salary for ninety one (91) months as alleged by the Defendants/Counter-Claimants.

It is apposite to state at this point that a Counter-Claim which is also a cross-action is governed by the same rules of pleadings as applicable to Statement of Facts. Such counter-claim is an independent and separate suit which is merely added to the main case for the purpose of convenience and speedy trial.

The onus is therefore on the Defendant who alleges to prove his case by producing sufficient evidence to the satisfaction of the court. See Admiral Mike Akhigbe (Rtd.) and Others V. Paulosa (Nig) Limited and Another (2006) 12 NWLR (Part 994) 373 at 383 paras. F – H.

Having evaluated the evidence in support of the Counter-Claim I am not satisfied that same has been proved as required by law. This is because there is nothing before the court to show that the claimant/Defendant to Counter-Claim received the amount being counter-claimed by the Defendants/Counter-Claimants. No pay slip, payment voucher or any document was produced to buttress this allegation. The Defendants/Counter-Claimants have failed to prove the Counter-Claim.

I therefore find no merit or substance in the Counter-Claim and same is hereby dismissed.

Judgment is entered accordingly.

Hon. Justice P. I. Hamman

Judge

APPEARANCES: