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SAIDU MADAWAKI VS GOVERNOR OF SOKOTO STATE & 2ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

BEFORE HONOURABLE JUSTICE K.D.DAMULAK

ON WEDNESDAY THE 31ST DAY OF OCTOBER, 2018

SUIT NO.NICN/SK/13/2018

BETWEEN

SAIDU MADAWAKI

CLAIMANT

       AND

  1. GOVERNOR OF SOKOTO STATE
  2. STATE CIVIL SERVICE COMMISSION

SOKOTO STATE

  1. ATTORNEY GENERAL & COMMISSIONER

    FOR JUSTICE SOKOTO STATE

DEFENDANTS

REPRESENTATION

  1. B.M.Jodi with A. Zubairu and Umar Bala for claimants.
  2. Suleiman Usman SAN With Almustafa Abubakar, ADPP, MOJ, Sokoto State, and Nurudeen Muhammed, PSC, MOJ, Sokoto State for the defendants.

JUDGMENT

  1. INTRODUCTION

This judgment centers on whether the claimant was lawfully dismissed or removed from his appointment by the Governor of Sokoto State. The claimant took out an originating summons against the defendants on the 20/9/2018, accompanied by all the necessary documents as required by the Rules of this Court.

The claimant formulated 5 questions for determination and has prayed for 13 reliefs. The questions by way of summary relate to whether the 1st defendant, Governor of Sokoto State has the power to determine the appointment of the claimant by dismissing him without fair hearing, without recourse to the Board of Sokoto Marshall Agency and whether the dismissal of the claimant by the 1st defendant is lawful. The reliefs sought by the claimant are;

  1. A DECLARATION that the 1st defendant has no power and or acted ultra vires his powers in purporting to dismiss the Claimant from his appointment as Commandant (Chief Marshal) of Sokoto Marshal Agency vide letter titled “Dismissal” reference No, EXC0/59/S/VOL/1 dated August 17, 2018.
  2. A DECLARATION that only the Board of the 2nd Defendant has  Powers which it may exercise in the event of proven case of inefficiency or misconduct/gross misconduct and following due process to dismiss the Claimant from his appointment as Commandant (Chief Marshal) of Sokoto Marshal Agency·
  3. A DECLARATION that the 1st defendants in purporting to dismiss the Claimant from the public service of Sokoto state vide letter reference No. EXCO/59/S./VoL1 dated August 17, 2018 in exercise of powers he does not possess and without affording the Claimant the benefit his right to fair hearing as guaranteed by section 36( 1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended as affirmed by Rules 04201, 04202, 04203, 04207, 04301 – 04306, 04401- 04406 of the Sokoto State Public Service Rules revised to 2001 was in breach of the fundamental right of the Claimant  to fair hearing guaranteed under section 36(1) of the constitution,  hence null, void and of no effect whatsoever.
  4. A DECLARATION that the Claimant cannot in any event be dismissed from his appointment as Commandant (Chief Marshal) of Sokoto Marshal Agency as was purportedly done by the 1st Defendant vide letter reference No. EXC0/59/S./VOL/1 dated August 17, 2018, in the absence of any proven grounds of inefficiency or inability to discharge the functions/duties of his office or misconduct/gross misconduct.
  5. A DECLARATION that Claimant is entitled to retain /remain in his employment/appointment as Commandant (Chief Marshal) of Sokoto Marshal Agency until the said appointment is determined.
  6. AN ORDER setting aside the purported compulsory retirement of the Claimants conveyed/contained in the 1st defendant’s letter titled “Dismissal” dated August 17, 2018 reference nos. EXC0/S9/S.NOL/1, same being unconstitutional, unlawful, illegal, null, void and of no effect whatsoever.
  7.  A declaration that the Claimant is entitled to all his emoluments/entitlements and other privileges attaching to his office as Commandant (Chief Marshal) of the 2nd  Defendant as stipulated in, the 1st defendant’s letters reference nos. EXC0/59/vol/v titled “Appointment letter” dated 12th November, 2014 until his appointment is lawfully determined.
  8. A MANDATORY ORDER directing the Defendants by themselves, their servants, agents to grant, avail and pay to the Claimant all accrued or accruing salaries/emolument/benefits from August 17, 2018 until judgment and satisfaction thereof.
  9.  A MANDATORY ORDER directing the Defendants by themselves, their servants or agents to pay to the Claimant the sum of N5,000,000.00 being cost which the Claimant as wrongfully constrained to incur to engage solicitors to prosecute this action.
  10. A MANDATORY ORDER directing the Defendants by themselves, their servants or agents to pay to the Claimant the sum of N100,000,000.00 as punitive and or exemplary damages to the Claimant for physical and emotional/mental trauma caused by the wrongful determination of his appointment.
  11. AN ORDER OF INJUNCTION restraining the Defendants by themselves, their servants or agents from interfering in any way or manner with the Claimant in the performance of his duties and or withholding the salaries/emoluments/entitlements until his appointment is lawfully determined.
  12.  And such further orders as this court may deem tit to make in the circumstances.
  13. Cost of the action.
  14. FACTS OF THE CASE

The claimant was appointed as the COMMANDANT, SOKOTO CORPS MARSHALS by the Governor of Sokoto State on 12th November 2014 (exhibit dismissal “A”). The Sokoto Marshall Agency Law was passed by the Sokoto State House of Assembly on 1st June 2016 and assented to by the Governor on 13/6/2016. On 15/8/2018, the claimant heard the press release announcing his dismissal by the 1ST defendant on Sokoto Rima Radio & Television. On 17/8/2018, the claimant was served with a dismissal letter reference No. EXCO/59/S./VOL/1, thus this suit of the claimant.

  1. CASE OF THE CLAIMANT

Besides the above captured facts, some of the relevant depositions of the claimant are as follows;

  1. That I retired from the Nigeria Police Force as a Commissioner in 2014 after 35 years of unblemished service in the public service of the Federation.
  2. That the 1st defendant is the Governor of Sokoto State and by section 11(1) of Sokoto Marshal Agency Law No. 5 of 2016 is vested with power to appoint proper and fit persons to the office of Commandant (i.e. Chief Marshal) of the 2nd defendant.
  3. That your Claimant was offered an appointment into the civil service of Sokoto State as Commandant (i.e, Chief Marshal of the 2nddefendant) with effect from November, 2014 by the 1stdefendant vide a letter dated November 12, 2012 reference no. EXC0/59/V titled “Appointment Letter”. Said letter is attached here and marked as EXHIBIT DISMlSSAL “A”
  4. That my said appointment is temporary in the sense that it is not pensionable and attracts a fixed remuneration of N250,000,000 (two Hundred and Fifty Thousand Naira) monthly as stated in my letter of appointment (i.e. Exhibit Dismissal A) until lawfully determined. Other terms and conditions of my service are as contained in the Sokoto State Public Service Rules revised to 2001.

13, That the text of the said press release reads as follows:

 “………….

Similarly, the state Government has dismissed the Commandant of the Sokoto State Special Marshals, Saidu Madawaki.

…………… “

  1. That I know as a fact that the 1st defendant has no power to determine my appointment at all and without following the procedure and grounds stipulated in the Sokoto State Public Service Rules 2001- applicable to my appointment.
  2. That I know as a fact that I have a constitutionally guaranteed right under section 36(1) of the 1999 Constitution as affirmed by rules 02809 04201, 04202, 04203, 04207, 04301 – 04306, 04401- 04406 of the Sokoto State Public Service Rules 2001 to be informed of the grounds or causes on which my appointment is being considered for determination, to be afforded opportunity to make representation on such grounds and to have my representation to or considered or heard by the defendants before the decision to dismiss me is taken.
  3. That the Defendants have no power or right to dismiss your Claimant in the absence of proven allegation of inefficiency or misconduct/gross overriding public interest considerations.
  4. That the decision to dismiss me by the defendants is arbitrary, whimsical, unlawful, malicious and intended to spite me and tarnish my reputation.

24, That your Claimant have been greatly embarrassed by the arbitrary and unfair manner in which the defendants herein purportedly determined my appointment by way of dismissal and creating the impression that your Claimant is guilty of some misconduct/serious misconduct after putting in several years of satisfactory and unblemished service in the public/ civil service of the Federation and Sokoto State.

 

In his written address, learned claimant’s counsel submitted in his issue 1 that, the person vested with power to appoint a person to the office of Commandant (Chief Marshal) of Sokoto Marshal Agency is the 1st defendant according to section 11(1) of the Sokoto Marshal Agency Law. However, the 1st defendant has no powers on his own to determine the appointment of the Claimant. That section 9(f) of the Sokoto Marshal Agency Law provides that the Board shall be responsible for retirement, promotion and discipline of staff for the Agency. That though it may sound somewhat strange to say that the 1st defendant who is the person empowered by section 11(1) of the Sokoto Marshal Agency Law supra to appoint the Claimant has no power to fire the Claimant, but indeed that is the dictate of the Law as it is presently. See CONTROLLER OF CUSTOMS & ORS VS. GUSAU (2017) LPELR 42081.

That against this position of the Law, the only recourse or option open for the 1st defendant, if he must have the appointment of the Claimant determined, is to direct the Board of the 2nd defendant to initiate disciplinary proceedings against the Claimant that may lead eventually to the 2nd defendant’s exercise of its powers under section 9(f) Sokoto Marshal Agency Law.

Arguing questions 2, 3, and 4 together, learned claimant counsel submitted that the Sokoto Marshal Agency is an extra ministerial department or organ of the Sokoto State Government established under section 4(1) of the Sokoto Marshal Agency Law No. 5 of 2016 and is consequently part of the Public/Civil Service of the State. Relying on Rules 01001 and 01003 of the Sokoto State Public Service Rules revised to 2001, counsel submitted that being a staff or officer of the Agency, the claimant is in the public service of Sokoto State and subject to the Sokoto State Public Service Rules revised to 2001 except where the Rules conflict with specific terms of a contract or appointment.

That the Sokoto State Public Service Rules is a subsidiary legislation and have the force of Law. Counsel relied on the case of CONTROLLER OF CUSTOMS & ORS VS. GUSAU (2017) LPELR 4208. Counsel drew the attention of the court to the deposition in paragraphs  7 to 12 of the supporting affidavit as well as Exhibit Dismissal “A” and submitted that Exhibit Dismissal “A” did not condescend to details of how the appointment may be determined by either party and so for such determination recourse must be had solely to the Sokoto State Public Service Rules revised to 2001 when the determination of the appointment of the Claimant is being contemplated, referring the Court to section 207 and Rules 04102 of the Sokoto State public service Rules. Counsel then made copious reference to section 36 of the constitution and several Rules of the Sokoto State Public Service Rules in arguing that it is the Sokoto State Civil Service Commission that has disciplinary power over the claimant and the disciplinary procedure as prescribed by the Rules.

Arguing issue 5, learned counsel submitted that all the reliefs sought by the Claimant  before the Court flow naturally from the finding that what the defendants did in purporting to dismiss the Claimant is a nullity and of no effect hence they ought to be granted without any hesitation.  CONTROLLER OF CUSTOMS & ORS VS, GISAU (2017) LPELR 42081, AKINEDO & ORS  VS. EDO STATE GOVERNMENT & ORS. (2011) LPEL7 4174, EKPEROKUN VS. UNIVERSITY OF LAGOS (1996)4 NWLR (PT· 34)162.

Counsel then urged the court to grant the reliefs as prayed.

  1. CASE OF THE DEFENDANTS

In a 16 paragraph counter affidavit deposed to by Abdulkadir Mohammed Ahmad, the Director, Cabinet Affairs Department, Cabinet Office Sokoto on behalf of the defendants, the deponent deposed as follows;

  1. That paragraph 5 is true only to the extent that, the staffs of the Agency are employed by the State Civil Service Commission in accordance with public Service Rules 2001 but not the Claimant who is a retired public servant.
  2. That contrary to paragraph 7, the claimant was not appointed into the civil service of Sokoto State because he is a retired public servant having served the Federal Government in the Nigeria Police Force for 35 years before he retired.
  3. That in further answer to paragraph 8, the appointment of claimant is a political appointment which he holds at the pleasure of the Governor as contained in Exhibit dismissal “A” attached to the originating summons and he was appointed as Commandant, Sokoto Corps Marshall with effect from 10thNovember. 2014.
  4. That the appointment of the Claimant attracts an allowances of Two Hundred Fifty Thousand Monthly payable from the Vote of the Office of the Secretary to the State Government and no more.
  5. That his appointment attracts allowances only and is not pensionable or subject to Public Service Rules 2001.
  6. That the Governor has the power to dismiss him summarily because he was appointed by executive fiat.
  7. That at the time the Claimant was appointed, Sokoto Marshal Agency has not been established under any law of the State.

The learned Suleiman Usman SAN. for the defendant contended that the Claimant’s issues for determination as framed in this suit begs the question and will afford no answer to this suit because the questions in the originating summons were merely restated and duplicated. Hence he sought to formulate his own “issue for determination as follows”; and then stopped there; he did not formulate the proposed issues.

Learned silk submitted that it is only when an employment is clothed with statutory flavor that it must be terminated in a way and manner prescribed by the relevant statute. IBAMA V SPDC (NIG) LTD 2005 17 NWLR (Pt. 954) at 364 and UBN Ltd. V OGBOH (1995) 2 NWLR (Pt. 380) p.64.

 That contrary to the claimant’s contention, his appointment is not made under any Act or Law and therefore do not enjoy statutory flavor. Indeed, an employment is said to have statutory flavor when it is protected or regulated by statute.

That the appointment of claimant is a political appointment which he held at the pleasure of the Governor. He was for all intent and   purposes, appointed as Commandant, Sokoto Corps Marshall with effect from 10th November, 2014. He was not appointed by the 2nd defendant and therefore not a civil servant.

Counsel contended that the appointment of the claimant was within the ambit of section 208 of the 1999 constitution as amended.

That Contrary to the claim of the Claimant, the Sokoto State Public Service Rules, 2001 do not apply to the position of the Claimant being a political appointee by virtue of paragraph 01001 which is rule 1 of Chapter 1 of the Public Service Rules also and that where an appointment of a Political appointee is terminated, as in the case of the claimant there is no valid cause of action against the terminating authority or body.

  1. CLAIMANTS REPLY ON POINTS OF LAW

The claimant filed a reply on points of law on 23/10/2018. Also attached to the reply on points of law is a document titled “REPLY TO COUNTER AFFIDAVIT IN OPPOSITION ORIGINATING SUMMONS”, claimant’s counsel, while adopting his processes on 24/10/2018, applied to have this document read as further and better affidavit, the learned defendants counsel did not object and the document was so corrected by order of Court. The further and better affidavit is an 8 paragraph affidavit deposed to by the claimant. The main crux of this further affidavit is to the effect that the document attached by the defendants in their counter affidavit as exhibit SSG was only served on the claimant on 27/9/2018 after he filed this case on 20/9/2018 and he exhibited the copy served on him (exhibit dismissal 3) showing he received same on 27/9/2018.

The difference between these exhibits is that exhibit dismissal “B” carries the word “dismissal” while exhibits dismissal 3 and exhibit SSG carry the word “removal”.

Replying on points of Law, learned claimants counsel pointed out that defendants in the written address, after casting aspersions on and rejecting the issues formulated for the claimants, failed, refused or neglected to formulate any for the defendants. The written  address dated 12/10/2018 by learned defendants’ counsel not being in furtherance of any issue before the court are irrelevant and ought to be disregarded/ discountenanced as the argument has no foundation on which it can stand.

Learned counsel then submitted that the submission of learned defendants’ counsel to the effect that the claimant’s employment is within the contemplation of the provisions of section 208(2)(a) & (d) and (5) of the 1999 Constitution hence is determinable at the pleasure of the Governor is misconceived as it does not correctly state the position of the Law. Sub section (2)(a) & (d) and (5) is set in very clear and  unambiguous words that does not accommodate the slanted interpretation placed on it by learned Senior Advocate. MWANA VS. U. B. A  PLC. (2003) 16 NWLR (Pt. 846) 218. That the Claimant before the Court was evidently neither appointed as the Secretary to the Government of the State, nor as a personal staff of the 1st defendant’s predecessor in office hence section 208 is irrelevant and does not avail the 1st defendant in this case.

  1. COURT DECISION

In his reply on points of law, learned claimants counsel urged the Court to discountenance defendants’ written address for want of issues. It is true that learned defendants’ Counsel started his address by deprecating the issues formulated by claimants counsel and opted to formulate his own issues but failed to do so. Judging by what the learned defendants’ counsel set out to do in his written address, his address is indeed without issues for determination. However, the defendants are not entitled to donate the issues for determination in this case; it is the duty of the claimant.  See ACHU V. CIVIL SERVICE COMMISSION OF RIVER STATE & ANOR. (2015) 57 N.L.L.R (PART 197)511 at  P.561 where the Court of Appeal per Omokri JCA held ;

“In suits commenced way of originating summons, it is for the plaintiff (appellant) to formulate the issues for determination and not the respondents who were the defendants… The real issues placed before the court for adjudication are those raised in the originating summons and those are the issues that the court must address. It was not for the respondents who were defendants to formulate issues for determination”.

 Supposing the defendants were entitled to formulate issues for determination; the failure to raise issues is not fatal to the written address as the failure at worst only amounts to inelegant and bad brief writing by counsel and discountenancing same will amount to shutting out the defendants. See LAGOS SHERATON HOTEL & TOWERS V  H.P.S.S.S.A (2011) 22 N.L.L.R(PT. 61) 184 at P.222 where this Court per Kanyip J held;

“Failure to raise issues for determination in a written address is non-compliance with the provisions of Order20 Rule 2(iii)& (iv) of the Rules of National Industrial Court. Such failure is simply inelegant and bad brief writing by counsel. It therefore would not result in the applicant being shut out by the court”. 

The written address of learned defendants’ counsel will therefore be considered.

Claimants counsel argued issue 1 alone, issues 2, 3 and 4 together and issue 5 alone. For reason of expediency it is necessary to reproduce the questions for determination as the Court considers the issues the way they are argued by claimant’s counsel.

Issue 1. (Question1).

Whether upon a proper construction of the provisions of sections 9(f) and Rules 04201, 04202, 04203, 04207, 04301-04306, 04401- 04406 of the Sokoto State Public Service Rules 2001 the 1st Defendant has power on his own to determine the appointment of the Claimant by dismissing him from his appointment as the Commandant (i.e. Chief Marshal) of the Sokoto Marshal Agency without recourse to the Board of Sokoto Marshal agency as he purported to have done vide letter titled “Dismissal” reference No.EXC0/59/s./vol./1 dated August 17, 2018.

Based on the affidavits and arguments of the parties, the Court shall answer this question by first determining whether the appointment and removal of the claimant is regulated by the Sokoto State Public Service Rules, the Sokoto Marshall Agency Law or any other Law. The Court shall then consider whether the claimant is a staff of the Sokoto Marshall Agency so as to be subject to the discipline of the Board of the Agency as provided for in section 9(f) of the Sokoto  Marshall Agency Law.

Although the appointment letter and dismissal/removal letter of the claimant is as COMMANDANT, SOKOTO CORPS MARSHALS, and COMMANDANT OF THE SPECIAL MARSHAL ORGANIZATION, the claimant, in his questions, reliefs and affidavit equates this position with chief Marshall by repeatedly referring to his position as “Commandant (i.e. Chief Marshall) of the  2nd defendant”. The 2nd defendant herein is Sokoto State Civil Service Commission, but given the facts of this case, the claimant is understood as referring to the Sokoto Marshall Agency. In view of the fact that the appointment was as COMMANDANT, SOKOTO CORPS MARSHALS before the Sokoto Agency Law was passed in 2016 and the dismissal letter in 2018 still referred to the claimant as COMMANDANT OF THE SPECIAL MARSHAL ORGANIZATION while the removal letter referred to him as COMMANDANT, SOKOTO CORPS MARSHALS, it raises the inference that the claimant at all times till his dismissal/removal was COMMANDANT, SOKOTO CORPS MARSHALS and to claim that he became the Chief Marshall, he must show  evidence of his  appointment or conversion as such under section 11(1) of the Sokoto Marshall Law 2016. The evidence that his appointment in 2014 as COMMANDANT, SOKOTO CORPS MARSHALS is equivalent of or was converted to Chief Marshall of Sokoto Marshall Agency after the Sokoto Marshall Agency Law was enacted in 2016 is missing. Similarly, there is nothing in the Sokoto Marshall Law 2016 to show that the position of commandant is the same as Chief Marshall therefore the Court cannot presume such fact that needs proof.

At the risk of repetition but for the sake of clarity, the claimant was appointed as COMMANDANT, SOKOTO CORPS MARSHALS in November 2014.The Sokoto Marshall Agency Law was passed into law in 2016.That Law has no provision for  the position of COMMANDANT neither does it make any reference to Corps Marshalls. That Law makes no reference to an existing Commandant now to be known as Chief Marshall. I have carefully studied the 29 sections of that Law in search of the connectivity between the COMMANDANT, SOKOTO CORPS MARSHALS and the Chief Marshall, but I found none. Sections 28 and 29 of the Law referred to and repealed  the Sokoto State Neighborhood Watch Programme Law 2014 and deemed to be Security marshals , all the qualified operatives of the hitherto Neighborhood Watch programme Law. Sections 28 and 29 of the Sokoto Marshall Agency Law provide as follows;

  1. The Sokoto State Neighborhood  Watch Programme law 2014  is repealed.
  2. Subject to section 9 (f) of this law, all the qualified operatives of the Neighborhood Watch programme law who were before the commencement of this law in the service of the Neighborhood watch programme, shall be deemed to be Security marshals of the Agency.

The more one tries to look for the connection between COMMANDANT, SOKOTO CORPS MARSHALS and the Sokoto Marshall Agency Law, the wider the gap gets. The irresistible conclusion is that the appointment of the claimant as COMMANDANT, SOKOTO CORPS MARSHALS up to the time it was determined, was neither covered by the Sokoto Marshall Agency Law 2016 nor any other Law.

I accordingly find that the claimant did not prove that his appointment as COMMANDANT, SOKOTO CORPS MARSHALS is the same position as Chief Marshall. I so hold.

The claimant was appointed by a letter of appointment dated 12/11/2014 as COMMANDANT, SOKOTO CORPS MARSHALS, the body of the letter of appointment reads;

Appointment Letter

 I am pleased to inform you that the Executive Governor, His Excellency, Alhaji (Dr.) Aliyu M. Wamakko GMON, MMWL, MIIFE (Sarkin Yamman Sokoto) has approved your appointment as COMMANDANT, SOKOTO CORPS MARSHALS with effect from 10/11/2014.

  1. The appointment attracts an allowance of Two Hundred and Fifty Thousand Naira (N250,000.00) monthly only.
  2. I wish you the best of luck and Allah’s continued guidance in the discharge of your assignment.

SAHABI ISA GADA OFR mni

Secretary to the State Government

The claimant’s appointment letter dated 12/11/2014 is said to be with effect from 10/11/2014. The Sokoto Marshall Agency Law was not yet in existence at the time of his appointment as the Law was passed in June 2016. However, Section 11(1) provides for the post of Chief Marshall but the post of COMMANDANT, SOKOTO CORPS MARSHALS is not referred to in the law in any way.

The question now is whether the claimants’ employment, discipline and removal is regulated by the Sokoto State Public Service Rules, Sokoto Marshall Agency Law, or any other Law or instrument. In OKOMU. VS. ISERHIENRHIEN (2001) 3 S.C. 140;  [2001] FWLR (PT. 45)  670. Per Uwaifo JSC,

In order to be able to reach any conclusion that the said rule 04102 (Federal Civil Service Rules) applies to the plaintiff, it must be shown, in my view, that he was a public officer employed by, or with the authority of, the Federal Civil Service Commission.

The implication of the lower courts finding that the applicant was bound to comply with the provisions of the Federal Government Civil Service Rules before terminating the appointment of the respondent is far-reaching. That would suggest strongly on the face of it and by logical thinking that the respondent was employed by the Federal Civil Service Commission and that his employment can only therefore be brought to an end under the authority, or by the direct act, of the Federal Civil Service Commission.

It seems to me a fair conclusion to say that it is when it has been satisfactorily established that an employee was appointed under the Federal Government Civil Service Rules as provided above that the question of his removal in compliance with the relevant provisions of the said rules can arise.

Similarly, in order to be able to reach any conclusion that the Sokoto State Public Service Rules applies to the claimant, it must be shown that he was a public officer employed by, or with the authority of the Sokoto State Civil Service Commission.

In this Case, exhibit dismissal “A” indicates otherwise as the appointment, remuneration and removal of the claimant is vested in the Governor without recourse to the Civil Service Commission or the Board of the Sokoto Marshall Agency.

It is also the finding of this Court that given the claimants letter of appointment, his position would not be different supposing his appointment were to be equivalent of Chief Marshall. Section 11(1) of the Sokoto Marshall Law, 2016   provide as follows;

  1. (1) There shall be appointed for the Agency a Chief Marshal who shall be appointed by the Governor·If the claimants appointment is deemed to be converted to Chief Marshall (though this court has already found that this is not proven), the claimant still remains an appointee of the Governor under the same condition in exhibit dismissal ”A” and no more.

 I agree with the learned SAN for the defendants that the claimant is exempted from the disciplinary rules in the Sokoto State Public Service Rules.

Is the claimant a staff of the Sokoto Marshall Agency subject to the provision of section 9(f)? Although the claimant was appointed in 2014 and the Skoto Marshall Agency came into existence in 2016, the claimants’ appointment remained as Commandant of sokoto Corps Marshall up to his dismissal or removal. Supposing that claimant’s appointment was converted to Chief Marshall, the claimant would, by Law, be deemed to be appointed under Section 11(1) of that Law which provides as follows;

  1. (1) There shall be appointed for the Agency a Chief Marshal who shall be appointed by the Governor·

Section 9(f) of the Law provides that the Board shall be responsible for recruitment, promotion and discipline of staff for the Agency. The claimant herein is not subject to recruitment or promotion. By paragraph 9 of his affidavit, exhibit dismissal “A” and

Section 11 (1) of the Sokoto Marshall Agency Law, 2016, the claimant, whether as commandant or as Chief Marshall, is an appointee of the Governor on a temporary contract basis. It must be borne in mind also that the claimant is a retired Civil Servant, a retired Commissioner of Police. The terms of his appointment are only as in exhibit DISMISSAL “A”. Section 9(f) of the Sokoto Marshall Agency Law does not apply to the claimant.

The conclusion of all that has been said above is that the Governor has the power to dismiss or remove the claimant without recourse to the Sokoto State Civil Service Commission or the Board of the Sokoto Marshall Agency. This issue is resolved against the claimant.

Issue 2.( Questions 2,3,and 4)

  1. Whether the Claimant having been employed or appointed as Commandant (i.e. Chief Marshall of the Sokoto Marshal Agency in the Civil Service of Sokoto State is, all events entitled to the benefit of the right of fair hearing guaranteed under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as affirmed in Rules 04201, 04202, 04203, 04207, 04301 – 04306. 04401- 04406 of the Sokoto State Public Service Rules 2001 when the issue or question of the determination of his appointment by way of dismissal on whatever grounds is being contemplated by the Defendants or any authority.
  2. Whether upon a proper construction of the provisions of section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, section 9(f) of the Sokoto Marshal Agency Law No, 5 of 2006 and Rules 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001 the Defendants can validly dismiss the Claimant from his employment/appointment as Commandant (i.e. Chief Marshal) of Sokoto Marshal Agency in the Civil Service of Sokoto State without giving notice of any grounds on which it is proposed to do so to the Claimantaffording him opportunity to  prepare and make representation to the Defendants and considering his defence or representation before the decision purportedly dismissing him is taken or reached.
  3. Whether upon a proper construction of the provision of section 36(1) of the 1999 Constitution of the Federal republic of Nigeria as affirmed in Rules 04201, 04202, 04203, 04207, 04301 -04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001 the purported dismissal of the Claimant as Commandant (i.e. Chief Marshal) of Sokoto Marshal Agency in the Civil Service of Sokoto State by the 1stdefendant as contained/conveyed in the 1st Defendant’s letter reference no. EXC0/59/S./VOL/1 titled “Dismissal” and dated August 17, 2018, is a lawful or valid exercise of power to determine the Claimant’s appointment and therefore effective.

Having found that the claimant is neither subject to the disciplinary power of the Civil Service Commission of Sokoto State; neither the procedure in the Public Service Rules of Sokoto State nor of the Sokoto Marshall Agency Board, where then lies the power to discipline the claimant, the ground and procedure for removal of the claimant?

Part of this issue, especially questions 2 and 3 have been answered in issue 1 to the effect that the employment of the claimant does not require the procedures in the Public Service Rules to remove the claimant. The most important question left to be determined in this issue now is whether the 1st defendant has the power to dismiss or remove the claimant.

Learned silk submitted that it is only when an employment is clothed with statutory flavor that it must be terminated in a way and manner prescribed by the relevant statute.  That contrary to the claimant’s contention, his appointment is not made under any Act or Law and therefore do not enjoy statutory flavor because an employment is only said to have statutory flavor when it is protected or regulated by statute. The learned SAN has argued that the appointment of the claimant is at the pleasure of the Governor, citing Section 208 of the 1999 Constitution and learned claimant’s counsel argued the contrary. Section 208 of the Constitution provides as follows;

208.   Appointments by Governor

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

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

       (a)        Secretary to the Government of the State;

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

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

The claimant’s appointment letter shows he was appointed by the Governor for a fixed salary of N250, 000.00 per month without any further conditions. By his appointment letter before the Court, the claimant was neither offered a permanent and pensionable employment in the Civil Service of Sokoto State nor was he offered a tenured appointment under any Law. The appointment of the claimant in 2014 was not made under any Law. There is no document showing that the claimant’s appointment was converted to one under Section 11(1) of the Sokoto Marshall Agency Law. Similarly, there is nothing in the Sokoto Marshall Agency Law showing that the Commandant, Sokoto Corps Marshall is equivalent to Chief Marshall under the Law or deemed as appointed under Section11(1) of the Law. In the circumstance, the appointment of the claimant under no law is as good an appointment as a personal staff of the Governor under Section 280(2) (d) of the constitution and so by Section 280(5) of the Constitution, the claimant holds his appointment at the pleasure of the Governor. The appointment of the claimant was therefore as a personal staff of the Governor since the Governor simply appointed him and assigned to him a position and duty as desired by the Governor and not by any Law. The Governor therefore has the right to dismiss or remove the claimant at his pleasure.

This issue is therefore resolved against the claimant.

The letter that brought about this case is exhibit Dismissal “A” dated the 17/8/2018 served on the claimant. That letter conveys approval of the 1st defendants dismissal of the claimant in the following words ;

“I am directed to inform you that the Governor Rt. Hon. Aminu Waziri Tambuwal, CFR (Mutawallen Sokoto ), has approved your dismissal as the Commandant of the Special Marshal organization under the State Civil Service”. (underlining supplied)

The defendants did not deny this letter but rather deposed to the facts of a removal letter dated the same 17/8/2018. That letter, (exhibit SSG) replaces the word “dismissal’ with the word “removal” thus;

“I am directed to inform you that the Governor Rt. Hon. Aminu Waziri Tambuwal, CFR (Mutawallen Sokoto ), has approved your removal as the Commandant, Sokoto Corps Marshal with immediate effect”. (underlining supplied)

The claimant deposed that exhibit SSG was only served on him on 27/9/2018 after his case was filed (and also served) on 20/9/2018. He attached a copy of exhibit SSG (as exhibit dismissal 3) showing that it was served on him by one Umar A. Umar, Staff Officer, Sokoto Marshall Agency on 27/9/2018. While adopting his written address, the learned SAN drew the attention of the Court to the signature and designation of the person who received exhibit SSG on 17/8/2018 and that of the person who served exhibit Dismissal 3 on 27/9/2018 and concluded that the same staff collected the said document on 17/8/2018 and served the claimant on 27/9/2018.

I have compared the two documents, the writings and signature, and I find that the same S.O Marshall who received exhibit SSG on 17/8/2018 is the same person as Umar A. Umar, Staff Officer, Sokoto Marshall Agency, who served the said document on the claimant on 27/9/2018.

The claimant’s counsel based his arguments on exhibit dismissal “A” while defendants’ counsel based his arguments on exhibit “SSG”, same as exhibit dismissal 3.

What is clear from these exhibits is that the 1st defendant intended to and did replace the dismissal (exhibit dismissal”A”) with a removal (exhibits dismissal 3 and SSG). Exhibit dismissal 3, same as exhibit “SSG” therefore supersedes and replaces exhibit dismissal “A”. The question of when the claimant left the employment of the defendants therefore comes into question.

The said exhibit dismissal 3, same as exhibit “SSG” was only served on the claimant on 27/9/2018. The implication is that the claimant held his appointment up to 27/9/2018 when he was served with the said removal letter, he is accordingly entitled to his salaries of N250,000.00 per month for the months of August and September,2018. I so hold.

6. COURT ORDER

For all that has been said, it is hereby declared and ordered as follows;

1.     A DECLARATION that the claimant remained in his appointment up to 27/9/2018 when he was removed by exhibit dismissal 3, same as exhibit “SSG”.

2.     AN ORDER that the defendants pay to the claimant the sum of N500, 000.00 (five hundred thousand Naira) only, representing his salaries for the months of August and September, 2018.

3.     AN ORDER that the judgment sum shall be paid within 21 days of this judgment failure upon which the judgment sum shall attract 10% interest per Annum.

I make no order as to cost.

Judgment is read and entered accordingly.

…………………………….

HON. JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO
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