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SAMBO YAHAYA NAWAWI -VS- SOKOTO STATE GOVERNMENT & 1 OTHER

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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 30TH DAY OF MAY, 2018

SUIT NO: NICN/KN/54/2016

BETWEEN

SAMBO YAHAYA NAWAWI …………………………………………………. CLAIMANT

AND

  1. SOKOTO STATE GOVERNMENT
  2. THE ATTORNEY GENERAL, SOKOTOSTATE …………………………RESPONDENTS

APPEARANCES

  1. B. A. Sufi Esq.with Dr. Nasiru Adamu Aliyu Esq. for the claimant.
  2. Suleiman Usman SAN, Attorney General, Sokoto State With P.A Chadi Esq. D.D.C.L Sokoto State, Habiba Ahmed Usman Esq. C.S.C Sokoto State. Nuru MohammedEsq.PSC Sokoto State. Monyi  Abubakar Esq.PSC Sokoto State.  A.A Mohammed Esq. S.S.C Sokoto State Sokoto State.  Hafis Cidi Buhari Esq. S.S.C Sokoto State, Abbas Samaila Esq. S.S.C Sokoto State, Hanatu Matankari Esq. P.S.C Sokoto State and  Fiddausi Abubakar Bagudo Esq. Sokoto State  and O.J Akhare Esq.PSC Sokoto State  for the Respondents.

JUDGMENT

  1. INTODUCTION

By a general form of complaint taken out on the 25/10/2016 in the Kano Judicial Division before same was transferred to this court in October, 2017 and accompanied by all relevant documents as required by the Rules of this Court, the claimant prayed for the following;

  1. A Declaration that the retirement date of the Claimant from the office of the Auditor-General of Sokoto State is the date of his attainment of the retirement age of sixty (60) years which is the 18th day of October, 2024;
  2. A Declaration that the Claimant’s removal from the office of the Auditor-General of Sokoto State before his retirement age which is 60 years and/or without following due process of law is unconstitutional, wrongful, illegal, null and void and of no effect whatsoever;

iii.                An Order setting aside the Letter for Notification of Retirement dated 18th August 2016 served on the Claimant by the agents of the Respondents as null and void and unconstitutional and of no effect.

  1. An ORDER REINSTATING the Claimant to his office and for the payment of all his salaries, allowances and other entitlements from the date of his purported unlawful removal until the date of his retirement;
  2. An Order directing the Respondents to pay the claimant the legal fees, cost and expenses of prosecuting this suit.

Or in the Alternative;

  1. An Order for the payment of the Claimant’s salaries, allowances and entitlements from the Claimant’s salaries, allowances and entitlements from the date of the Judgment of this Honourable Court until the month of October of 2024 when the Claimant’s term in the office as Auditor-General of the 1st Respondent is supposed to expire;

vii.               The sum of N500,000,000.00 as general damages for the breach of the contract between the parties and the trauma and losses caused to the Claimant;

viii.             Exemplary damages in the sum of N200,000,000 (Two hundred Million Naira).

By a motion on notice dated 12/1/2018 and filed on 15/1/2018 the defendants  filed their statement of defence which was moved, granted and  deemed as properly filed and served on 15/1/2018.

In response, the claimant filed a reply to the statement of defence on 15/1/2018.

  1. FACTS OF THE CASE

The claimant was a civil servant in the civil service of Sokoto State from 1981 and was appointed Auditor –General of the state on 4/2/2013. By a notice of retirement dated 18th August, 2016, the claimant was retired from service on the basis of having served in the Public Service of Sokoto State for 35 years. The claimant contends that by reason of Section 127(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Section 4 of the Sokoto State Audit Law 1996, he cannot be retired after 35 years of service but only after 60

 years of age. The defendant on the other side contends that the claimant is subject to retirement after 35 years of service in line with the Public Service Rules of Sokoto State 2001 and the Contributory Pension Scheme Law of Sokoto State 2007.

  1. CASE OF THE CLAIMANT

At the hearing of the case, two witnesses testified for the claimant. The claimant testified for himself as CW1 and Yusuf Yahaya Nawawi testified for him as CW2.

Testifying for himself as CW1, the claimant stated that he was born on 18th October 1964 and was employed by the Sokoto state government on 1/7/1981. That he attended various schools and professional trainings in the course of his employment and that on 2/2/2013 he was appointed as the Auditor-General of Sokoto state. That on 18th August, 2016 the defendants served him with a notice of retirement with effect from 30/6/2016 on the ground that he has served the state for 35 years. That by virtue of his position as Auditor-General of the state, he cannot be retired in line with the  Public Service Rules of Sokoto State but in accordance with the Sokoto State Audit Law as amended in 1996 which stipulates a retirement age of 60 years for an Auditor –General of the state in line with  the Constitution. That the Audit Law of Sokoto State 1959 as amended in 1996 is a subsisting and applicable law, it has not been repealed or abrogated but rather it was codified and adopted as Sokoto State Law by Legal Notice No.1 of 2000 which came into force on 21/2/2000 and was published in Sokoto State of Nigeria gazette of 21/2/2000 No.1 vol.35.

That having been born in 1964 he will be sixty years on 18th August, 2024 which is when he will be due for retirement. That the former Auditor- General, Yusuf Yahaya Nawawi, was retired at the age of 60 years in accordance with the constitution. That his retirement was malicious and based on his refusal to succumb to corrupt practices. The claimant tendered the following documents in evidence which were admitted and marked as follows;

  1. Claimant’s statutory declaration of age – exhibit SYN1
  2. Claimant’s appointment letter as Auditor – General of Sokoto state dated 4/2/2013 – exhibit SYN2.
  3. Claimant’s notice of retirement dated 18/8/2016 – exhibit SYN3.

Under cross examination, the claimant testified; I served the government of Sokoto State for 35 years from 1/7/1981.Yusuf Yahaya Nawawi is now 63 years and I am 53 years old. Before my appointment as Auditor –General, I was Director Audit and accounts of the Audit department. I was appointed as Auditor – General while still in service and I continued in service as Auditor – General until my retirement. The 35 years of service I stated includes my years of service as Auditor – General. The retirement age in section 127 of the constitution is such retirement age as may be prescribed by law.

Testifying for the claimant as CW2 was Yusuf Yahaya Nawawi. He stated that he was the immediate past Auditor – General of Sokoto State. That he was born on 12/12/1952 and he joined the Sokoto State Civil Service on 11/2/1971 and was appointed Auditor –General with effect from 18/9/1995 by a letter of appointment dated 26/9/1995. That he retired from Sokoto State Civil Service with effect from 12/12//2012 and the notification of retirement is dated 16/11/2012 in which his name was shortened as Yusuf A. Nawawi. That he did not retire in 2006 and was not issued with notice of retirement in 2006 or 2007.That the computation of his benefits dated 23/11/2012 also applies to the claimant.

The CW2 also tendered;

  1. His appointment letter as Auditor –General of Sokoto state dated 26/9/1995 – exhibit YYN4.
  2. His notification of retirement dated 16/11/2012.
  3. The notice of computation of his gratuity and pension dated 23/11/2012.

The respondents’ counsel objected to the admissibility of the last two documents, accordingly they were respectively marked as exhibits ‘YYN5 tendered’ and ‘YYN6 tendered’ and their admissibility deferred till judgment.

Under cross examination, CW2 testified that he is the elder brother of the claimant and that their age difference is 12 years. That he was the former Auditor –General of Sokoto state and it is not an elective office. That the office is also part of the Civil Service of Sokoto State. The Civil Service Commission in Sokoto State promotes and appoints. The process for the appointment of Auditor- General is as provided for in the constitution.

  1. CASE OF THE RESPONNDENTS

Testifying as the sole witness for the respondents as DW1, Bande Mohammed Rikina, the Permanent Secretary, Ministry of Commerce, Sokoto State and former director office of the Sokoto State Head of Civil Service stated that the claimant was retired from the Sokoto State Civil Service as Auditor –General on 30/6/2017 after attaining mandatory 35 years of service. That the retirement of the claimant is regulated by the 1999 Constitution, Sokoto State Pension Law and Sokoto State Public Service Rules.  That the Audit Law of Sokoto State 1959 and the 1999 Constitution as amended did not provide for the meaning and interpretation of retirement age of the Auditor –General of Sokoto State. That the prescribed retirement age of the Auditor-General of Sokoto State mentioned in Section 127 of the Constitution has been defined in Sokoto State Pension Law 2007 and Sokoto State Public Service Rules 2001.That the claimant was not removed from office but was duly retired from office after attaining the statutorily prescribed age of retirement which is 60 years of age or 35 years of service whichever is earlier. That Yusuf Yahaya Nawawi, CW2, was validly retired from office as Auditor-General upon attainment of 35 years of service on 2/2/2006. That CW2 was among the list of 260 staff who were due and or over due for retirement as at 31/12/2006 and whose names were forwarded to the chairman of Civil Service Commission for issuance of notification of retirement vide a letter dated 22/2/2007, reference number EXCO/53/VOL.II signed by me for the Head of Civil Service together with executive Governor’s approval dated 15/1/2007 with reference number EXCO/53/VOL III/13. That the retirement age of the Auditor – General in accordance with the Sokoto State Contributory Pension Scheme Law, 2007, official Gazzette No.3 of 2007 is 60 years of age or 35 years of service whichever comes first. That the respondents acted within the confines of the law in retiring the claimant after attaining the mandatory  retirement age of 35 years of service first.

This witness tendered two documents as follows;

1       RE: IMPLEMENTATION OF THE CONTRIBUTORY PENSION SCHEME IN SOKOTO STATE: LIST OF STAFF DUE OR OVER DUE FOR RETIREMENT AS AT 31ST DECEMBER, 2006 dated 12/1/2007 .

  It was admitted in evidence and marked as exhibit BMR 7.

2       LIST OF STAFF ACROSS THE STATE CIVIL SERVICE DUE OR OVER DUE FOR RETIREMENT AS AT 31ST DECEMBER, 2006 dated 22/2/2007. It was admitted in evidence and marked as exhibit BMR 8.

The claimant’s counsel also tendered the Sokoto State Public Service Rules 2001 through DW1 in cross examination. It was admitted in evidence and marked as exhibit BMR 9.

DW1 also identified the name of CW2 on page 38 of exhibit BMR8.

While testifying under cross examination by DR. Aliyu of counsel for the claimant, DW1 said I joined the service of Sokoto State Government in 1996 and have served for 22 years. The claimant is subject to the Sokoto State Public Service Rules because he is a pensionable officer. On exhibit YYN6 tendered, the date of birth is 12/12/1952 and the date of retirement is 12/12/2012 which means the person (CW2) retired at 60 years. Exhibit SYN3 is retirement notice of claimant, his date of birth is 18/10/1964 and the retirement date is 30/6/2016 which means he retired at the age of 52. I signed my witness statement in the day time. I signed this witness statement in the office of the Attorney – General’s chambers after making corrections.

  1. WRITTEN SUBMISSION OF DEFENDANT’S COUNSEL.

In his final written address for the respondents, which was adopted on 11/5/2018, the learned Suleiman Usman SAN, Attorney –General and Commissioner for Justice, Sokoto State, submitted that the claimant has the burden of proof. That the retirement of Auditor – General is regulated by law. That Section 127(2) of the Constitution did not expressly state the retirement age of the Auditor- General. That the retirement age mentioned in Section 127(2) of the Constitution has been prescribed by the Sokoto State House of Assembly when it enacted the Sokoto State  Contributory Pension Scheme Law,2007 which was signed into law on the 14th September, 2007. Section 2 of the law provides as follows’

”Retirement age means 60 years of age or 35 years of service, whichever comes first”

That the office of the Auditor –General is part of the Sokoto State Civil Service. The Sokoto State Public Service Rules 2001 as well as the Pension Law of 2007 governs the retiring age of civil servants including the Auditor -General.

That Rule 02809 of the Sokoto State Public Service Rules 2001 provides as follows;

“The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. No officer shall be allowed to remain in the service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier”

Learned counsel then submitted that the prescribed law referred to by the Constitution is the Sokoto State Civil Service Rules and the Pension Law of Sokoto state and that the wordings of the provisions of Section 2 of the Sokoto State Contributory Pension Scheme Law No.4 of 2007 and Public Service Rules quoted above are clear, precise and unambiguous and should be given their natural and ordinary meaning.

Counsel submitted further that since neither the Governor acting under his powers under Section 315(a) (i), (b) and (c) of the 1999 Constitution as amended or the House of Assembly pursuant to its powers under Section 4(6) of the Constitution acted to bring  into conformity with the Constitution, the Audit Law 1959 cap.11 Laws of Sokoto State 1996, the law,  apart from being spent and obsolete, betrays a pitiable deficit in the face of  the position of the current law.

On his issue 2, relating to claimant’s prayers for special damages, learned counsel submitted that in an employment with statutory flavor, where the employment is found to be unlawfully terminated, the remedy is reinstatement. BAUCHI STATE CSC V EMMANUEL S. DANJUMA (2017)7 NWLR (PT.1505) 432 AT 445.

That damages payable for any employment wrongfully terminated are not at large, they are limited by condition of service and the claimant is only entitled to what he would have earned if not for the wrongful termination.UBN CHINYERE(2010)NWLR(PT1203)453;RELANE TELECOMMUNICATIONS LTD V ADERIGBEGBE(2017)8 NWLR (1567) 319 at 332-333

That special damages have to be pleaded and particularized, the claimant have to specifically plead each of the items of the special damages and must strictly proof them as the court is not entitled to make its own estimate of same. GARBA V KUR (2013) 2 NWLR (PT.831)280; OSUJI V ISIOCHA (1989)3 NWLR (PT.111)623; OTARU &SONS LTD V IDRIS (1999)6 NWLR (PT.606)330.

Counsel then urged the court to dismiss the claimant’s action with cost.

  1. WRITTEN SUBMISSION OF CALAIMANT’S COUNSEL

Submitting for the claimant in his written address, which was adopted on 11/5/2018, learned Dr. Nasiru Adamu Aliyu submitted that the witness statement on oath of DW1 was incompetent because it was signed in the office of the learned Attorney –General and not before the commissioner for oaths and accordingly same should be expunged leaving the statement of defence bare without evidence to support it.

On the tenure of the Auditor-General, counsel also submitted that the baseline law governing the tenure of the claimant is Section 127(1) and (2) of the 1999 Constitution as amended. That it is trite law that where the provision of the Constitution is clear and unambiguous, it is the duty of a Court of law to give such provision its simple grammatical meaning. HON. MICHAEL DAPYANLONG &ORS V CHIEF (DR) JOSHUA CHIBI DARIYE &ANOR (2007) LPELR 298 SC; FAWEHINMI V I.G.P (2002)5 SC (PT.1)63. That the wordings of Section 127 (2) of the Constitution are plain and should be given their natural grammatical meaning.

Counsel submitted that an Auditor- General could be removed from office by the Governor acting on a motion supported by 2/3 of the members of the House of Assembly or he will vacate office upon attaining a retiring age as may be prescribed by a law. In the instant case, claimant was not removed by Governor so his retirement can only be upon attaining the prescribed retiring age in line with Section 127 (2) of the 1999 Constitution as amended. He submitted that the Sokoto State Audit Law cap 11 of 1996 is the law contemplated by Section127 (2) of the Constitution, particularly Section 4 of the said Audit Law. By virtue of 1st schedule of the interpretation part of the Sokoto State Laws 1996, the Director of Audit is now the Auditor –General.

That the Sokoto State Audit Law is part of the Laws of Sokoto State 1996 and it is an existing law by virtue of Section 315 of the Constitution and that the Governor of Sokoto State, Alhaji Attahiru Bafarawa had exercised his power by virtue of Section 9(2) of the revised edition of (Laws of Sokoto State Nigeria) to bring into force the revised Laws of Sokoto State 1996 with effect from 24th January, 2000.

Counsel submitted that it is indeed a fact that public officers could retire from office if : (a) they put in 35 years in service or attain the sixty years age whichever comes first or (b) by attaining retiring age notwithstanding they served in public office for more than 35 years. That officers in category (a) above are those public officers subject to the application of Public or Civil Service Rules. COMPTOLLER GNERAL OF CUSTOMS &7 ORS V COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081 SC;

Counsel submitted further that by virtue of paragraph 01001 of the Sokoto State Public Service Rules, the Auditor –General of Sokoto State is not subject to the Rules and particularly Rule 02809 in the instant case. That other categories of public officers who can only retire on attainment of retirement age are judicial officers, university and other tertiary institution lecturers who retire on attaining a retirement age of 65 or 70 years. See Universities (Miscellaneous provision) Act 2012 as amended.

Counsel further submitted that where there is a conflict between Section 2 of the Sokoto State Contributory Pension Scheme Law, 2007 and Section 4 of the Sokoto State Audit Law, it is the position of the law that where there are two enactments on a matter, one making general provisions and the other making specific provisions, the one making specific provisions shall prevail. That Section 2 of the Sokoto State Contributory Pension  Scheme Law, 2007 is a general law while Section 4 the Sokoto State Audit Law is a specific enactment applicable to the Sokoto State Auditor- General and as such it prevails. That another reason why the Audit Law is the applicable law is that it has been enacted in line with Section 127(2) of the 1999 Constitution as amended. Further on Section 2 of the Sokoto State Contributory Pension  Scheme Law, 2007,counsel submitted that only the portion that provides that “Retirement age means 60 years of age..’ is applicable to the Auditor-General being in line with Section 127(2) of the Constitution while the part that says “or 35 years of service whichever comes first” is inapplicable being inconsistent with Section 127(2) of the Constitution, referring to Section 1(1) and (3) of the 1999 Constitution as amended.

Counsel then submitted that the case of THEOPHILUS OGBOJEH OMONIYI V THE GOVERNOR OF EDO STATE &ANOR (2004) 5 NWLR (PT.856) P.175 has settled the question of the retirement age of a state Auditor –General to be sixty years of age.

It was further the submission of learned counsel that the conduct of the defendant has shown that the Auditor –General of the state is to retire after he attains 60 years of age as was the case with the retirement of CW2, Yusuf Yahaya Nawawi who was retired at 60 years of age after 41 years of active service in the Sokoto State Public Service because the defendants knew that CW2 was to retire after 60 years of age and not after 35 years of service.

Responding to defendants counsel’s submission that the Sokoto State Audit Law of 1959 as revised in 1996 is a spent and obsolete law, counsel argued that the Audit Law is still an existing law and that the defendants had saved and revised the Audit Law of 1959 in Sokoto State by Legal Notice No.1 of 2000.That statutes are not repealed by inference or implication but by direct provision of law. See IBIDPO V LUFTHANSA AIRLINES (1997) LPELR-1397 PP58-59

Responding to defendants counsel’s submission that his claims for special damages are not grantable, claimant’s counsel admitted that the claim for special damages, legal fees, cost and expenses of prosecuting this case were not proved.

Counsel then urged the court to grant the main claim of the claimant or the alternative reliefs.

  1. REPLY ON POINT OF LAW BY DEFENDANT’S COUNSEL.

Replying on points of law, on the competence of the witness statement of DW2, the learned silk submitted that by Section 168(1) of the Evidence Act, 2011, the court should presume regularity in favour of the process filed in this court since the contrary cannot be proved because the written statement has already been adopted and thus crystallized into oral evidence. That being a witness statement, it is not like an affidavit and thus not evidence until the witness is sworn in court and he adopts his witness statement. That a witness statement is like pleading and evidence must be adduced in proof of a witness statement on oath otherwise it is useless. Counsel referred to the case of OGUNDE V ABDULSALAM (2008) LPELR 49 and urged the court to invoke the presumption of regularity in favour of the witness statement.

Counsel submitted further, assuming but not conceding that the witness statement was incompetent, the documentary evidence should be used since they are duly certified and could be tendered without the witness and the court is empowered to look at any document in its file even if it was not tendered in evidence, citing OYEWALE V AKANDE (2009) 15 NWLR (PT.1163) P119 at p.148.

On the applicability of the Public Service Rules to the claimant, learned silk submitted that by virtue of Rule 01001, the rules apply to the Auditor –General to the extent that they are in conformity with the Constitution. That the Constitution clearly contemplates the application of the  Public Service Rules in  determining the retirement age of the claimant as found in Rule 02809 of the Sokoto State Public Service Rules which enjoys Constitutional flavor, citing SHITTA-BEY V FEDERAL CIVIL SERVIXE COMMISSION (1981) 1 SC 40.

On the applicability of the Sokoto State Audit Law 1959, the learned silk submitted that the Audit Law as contained in the laws of Sokoto State 1996 was amended in 1999 by Modification of Laws Sokoto State Order No 1 of 1999 by the then Governor on 31st August, 1999. (The said amendment or modification by order of the Governor is contained in Sokoto State of Nigeria Official Gazette No. 1 vol.1 of 1999). Section 4 of the said Audit Law of 1996 was amended by the Modification Order to also make 35 years of service part of the retirement age. That if we may say so, not withstanding that the Audit Law is still existing law, have been modified and brought into conformity with the Constitution. Learned counsel insisted that the Audit Law is an old law and the latest testament is the Sokoto State Contributory Pension Scheme Law, 2007. However, while adopting his final written address on 11/5/2018, the learned silk conceded that in view of his reliance on the Modification Law of 1999, that includes the Audit Law of 1959 as amended in 1996.

On the 9/4/2018, when this court sat, the business of the court was adoption of the final written addresses but claimant’s counsel requested for time to respond to the 1999 modification of the Audit Law raised by defendants’ counsel in his address on point of law on the ground that it was a fresh point and he only got the 1999 Gazzette that morning. Learned silk argued that it was a response and not a fresh point of law.

Seeing that the amendment was never mentioned by defence counsel in his statement of defence or in his final written address having written first, the court was of the opinion that the claimant’s counsel be allowed in the interest of justice to respond to the issue of the Modification Law before the court can determine if the response is appropriate and allowable in law.

Considering the volume of reference to “retirement age” in both addresses, the court asked both parties to particularly address it on the interpretation of Section 127(2) of the Constitution, particularly, ‘retiring age’ or ‘retirement age’.

On the part of the claimants counsel, he submitted that the parties did not join issues on the modification of the Audit Law of 1959 as amended in 1996 but only on the Audit Law itself which defence counsel contended it is obsolete and spent. That the non pleading of the modification of the Audit Law and raising same in reply on point of law amounts to a fresh point of law and should not be allowed, particularly where the claimant will have no opportunity to reply as in this case and so the claimant is entitled to an opportunity to respond.AG. LAGOS STATE V C.U.S LTD (2002) 14 NWLR (PT.786) P105 at 125-126. That the defendant has now admitted and given life to the Audit law of 1959 as amended in 1996 by relying on the Modification Law of 1999 and thus abandoning their earlier stance on the law governing retirement of the Auditor-General of Sokoto state. That the absence of pleading on the modification of the Audit Law by Gazette No.1 of 1999 has defeated and robbed the respondents from raising and relying on same at address stage.

On the said modification of Section 4 of the Audit Law, counsel submitted that the court should discountenance it because it was not pleaded and counsel address cannot take the place of evidence.

Submitting on whether the said modification is in line with Section 315 of the 1999 Constitution as amended, counsel said the modification is ultra vires the powers of the Governor and unconstitutional as it was not done in line with Section 315 of the Constitution.

That where an existing law was already in conformity with the Constitution, any purported amendment under Section 315 is null and void and will not be allowed to stand. ADESOYE V GOVERNOR OF OSUN STATE (2005) 16 NWLR (PT.950) P1.  Counsel submitted that where it is not shown that the law modified was not in conformity with the Constitution, any such amendment by the Governor amounts to usurpation of the powers of the House of Assembly. PAUL UNONGO V APER AKU &ORS (1983) 2 S.C.N.L.R P332. Counsel submitted that the said modified Section 4 is null and void as it in effect tends to widen and add another meaning to “retiring age” in Section 127(2) of the Constitution. That Section 127(2) only contemplates “age” and not “years of service”. That the amendment of Section 4 by the said Modification Law of 1999 is on a collusion cause with Section 315(2) of the Constitution and same should be declared null and void for inconsistency with Section 315 of the Constitution.

On the interpretation of “retiring age” as per Section 127(2) of the Constitution, learned claimant’s counsel adopted and relied on his submission on pages 8-15 of his final written address.

On his own part, the learned silk submitted for the respondents that the issue of the modification of the Audit Law was not a fresh issue, that it was the claimant who raised the issue of the Audit Law in paragraph 13 of his statement of facts. That once a Law is amended and that Law is in issue, all the amendments are also in issue and not only the main Law. That they have joined issues with the claimant on the Audit Law in paragraph 8 of their defence.

Learned counsel submitted further that it is the Constitution of the Federal Republic of Nigeria 1999 as amended that first created the office of the Auditor –General of a state so the Audit law of 1959 which started as Cap 11 laws of Northern Nigeria 1963 was first modified to bring it into conformity with 1979 Constitution and in so doing the age of retirement of Director of Audit was raised from 55 years to 60 years.

The latest amendment was the modification of laws (Sokoto State) Order,1999 making his retirement age to be in line with Public Service Rules.

The learned silk then quoted and relied on the opinion of a learned professor (Professor Jadesola O. Akande), at page 191 of her book titled Introduction to the Constitution of Nigeria 1999, Nigeria professional publishers limited 2000, where the learned Author opined on the tenure of the Auditor –General of the Federation under Section 87 of the 1999 Constitution as follows;

“..He can be removed only for misconduct or infirmity of mind or body sufficient to make him unable to carry on with his duty, he can keep his office until retirement age fixed … for all civil servants. There is no reason to assume that a different age limit will be prescribed for him, especially as he is recommended by the Federal Civil Service Commission.”

 Learned counsel submitted that both the president and Governor are empowered by Section 135 of the 1999 Constitution to make such textual modifications as are necessary or expedient to bring them in conformity with the Constitution, citing USMAN MOHAMMED V ATTORNEY GENERAL OF KADUNA STATE (1981) NCLR 117 at 123-124.

On the interpretation of “retiring age” as per Section 127(2) of the Constitution, learned defendants counsel submitted that there are two canons of interpretation of Constitutions, the first canon relevant to both issues is the canon which prescribes that the language used in a Constitution must be interpreted generously. That the language of a Constitution should not be interpreted in a narrow or legalistic way ,but rather broadly or liberally and purposively so as to give effect to its spirit, citing NAFIU RABIU V THE STATE(1980)8-11 SC P130 at 148-149.and AG.BENDEL STATE V AG.OF THE FEDERATION(1982)3 NCLR1;(1981) SC1 at 78-79.(see rules 1,4,5,7,10) However, when adopting his final written address on 11/5/2018, the learned silk conceded that the first rule of interpretation is as earlier submitted in his first written address.

Counsel submitted further that the Constitution has covered the field regarding appointment, function, removal and retirement of an Auditor general except the prescription of the retirement age, accordingly, any state law that purported to duplicate those provisions was in abeyance. It was inoperative but not void.

Counsel submitted that retiring age is the time at which a person may disengage or be disengaged from service, employment or appointment expressed in years relevant to the anniversary of his birth or years of service, employment or appointment.

It is true that the defendants never referred to the said Modification Law No.1 of 1999 in their statement of defence and did not do so either in their final written address. On the contrary, the contention of the defendants was that the applicable laws are the Public Service Rules of Sokoto State and the Contributory Pension Scheme Law. In particular, learned silk submitted in his final written address that neither the Governor nor the Sokoto State House of Assembly has acted to bring the Audit Law of 1959 in conformity with the Constitution and it is a pitiable deficit. However in his reply on points of law, counsel now makes a U- turn and submitted that the Governor has acted through Modification Law No. 1 of 1999 to bring the law in conformity with the Constitution by amending Section 4 thereof.

Claimant’s counsel submitted that it amounts to a fresh point of law and that the absence of pleading on the modification of the Audit Law by Gazette No.1 of 1999 has defeated and robbed the respondents from raising and relying on same at address stage.

With much respect to the learned claimant’s counsel, this is not a fresh point of law as the Audit Law has been in contest all along and it is never too late to rely on a law. Once a Law exists, it is applicable to a case if it is relevant and the judgment of a trial court may be set aside for going contrary to an applicable existing law even though it was not brought to the attention of the trial court or it failed to avert its mind to it. However, given the state of pleadings and the way the Modification Law was raised at the stage of reply on points of law, claimant’s counsel is entitled to respond to it, particularly where he is challenging the validity or Constitutionality of the said modification law as he has done herein. The court is accordingly bound to consider the Modification Law in the light of Section 315 of the Constitution.

Learned claimant’s counsel has also submitted that the defendant has now admitted and given life to the Audit law of 1959 as amended in 1996 by relying on the Modification Law of 1999 and thus abandoning their earlier stance on the law governing retirement of the Auditor-General of Sokoto state.

By his submission on 11/5/2018 while adopting his address, the learned SAN for the respondents conceded that the 1959 Audit Law as amended in 1996 is also applicable but the said Audit Law has been modified in 1999 by the Modification Law No.1 of 1999 to add 35 years of service as part of the retirement age of the Auditor -General. The respondents’ position that the Pension Scheme Law and the Public Service Rule are also applicable has not been abandoned.

  1.  ISSUES FOR DETERMINATION

The claimant has submitted three issues for determination namely;

  1. Whether exhibits YYN5 and YYN6 are inadmissible in law.
  2. Whether the written statement on oath sworn to by the DW1 is competent in law.
  3. Whether the claimant can be retired compulsorily from office as the Sokoto State Auditor –General before he attains the age of sixty years.

On his own part, the learned silk submitted the issue for determination on behalf of the respondents as follows;

  1. Whether in the circumstance of this case, the retirement of the claimant having attained the mandatory retirement age of 35 years of pensionable service is wrongful, unconstitutional, null and void.
  2. Whether the claimant is entitled to the reliefs sought in his complain, regards being had to law and the evidence adduced at the trial of this action.

Given the submissions of both counsel, this court is of the opinion that the three issues formulated by the claimant and the first issue formulated by respondents will properly dispose of all issues in this case, but issue 3 is amended to read thus;

  1. Whether the retirement of the claimant after 35 years of service but before attaining 60 years of age is lawful in view of Section 127(2) of the Constitution of the federal republic of Nigeria 1999 as amended.

 

  1. COURT DECISION

Issue 1

On the admissibility of exhibitsYYN5 tendered and YYN6 tendered; as earlier pointed out, the CW2 also tendered;

  1. His appointment letter as Auditor –General of Sokoto state dated 26/9/1995 – exhibit YYN4.
  2. His notification of retirement dated 16/11/2012.
  3. The notice of computation of his gratuity and pension dated 23/11/2012.

The respondents’ counsel objected to the admissibility of the last two documents, accordingly they were respectively marked as exhibits ‘YYN5 tendered’ and ‘YYN6 tendered’ and their admissibility deferred till judgment.

The learned respondents’ counsel objected to the admissibility of exhibit YYN5 tendered on the ground that the document is at variance with pleadings, that while the name on the document pleaded was Yusuf Yahaya Nawawi, the name on the document tendered is Yusuf A. Nawawi. Furthermore, that the document has alterations on the face of it where the word “Y.A.N” was endorsed. That the document has neither serial number nor C.S.C number as in exhibit SYN3 and so same cannot be genuine.

The pleadings of the claimant relating to Yusuf Yahaya Nawawi are as found in paragraphs 19 and 20 of the statement of facts and paragraph 2 of the reply which is the same with the evidence of CW2 in paragraph 4 of his witness statement on oath which is as follows;

  1. “That I retired from the sokoto civil service with effect from 12/12/2012.The notification for retirement from service issued to me contained my date of birth ,and first appointment, the document dated 16th November shortened my names as Yusuf A. Nawawi.”

By the pleadings and the testimony of CW2, the document is not at variance with pleadings.

There is written on the document, Y.A.N in thick red ink, how it constitutes an alteration is what learned counsel did not say. There is no alteration on the face of the document.

Furthermore, I have taken a look at the name of the CW2 relied upon at page 38 of exhibit BMR8 tendered by the respondents and I find that the 1st respondent wrote the name of CW2 as “Yusuf A. Yahaya Nawawi”. The respondents cannot now claim that “Yusuf A. Nawawi” in a document emanating from the 1st respondent does not refer to CW2 whose name is “Yusuf Yahaya Nawawi”.

On the absence of serial number or C.S.C number, it must be observed that the claimant or witness is not the maker of the document but the 1st respondent and so the claimant or witness cannot be held responsible for any failure on the part of the 1st respondent to fill the serial number or C.S.C number.

On the genuineness of the document, the document is in its original form as it was served on the CW2 by the 1st respondent. It carries the seal of the Civil Service Commission, Sokoto State and is signed by the director of administration for the chairman, Civil Service Commission, Sokoto. There is presumption of regularity in favour of the document.

Since it is not disputed that the CW2 was Auditor-General nor is it disputed that he was retired, to contest the genuineness of the document, the respondents ought to plead and produce the genuine document since this document was pleaded and front loaded by the claimant.

For all the above reasons, I overrule the objection and admit the document and it is marked as exhibit YYN5.

On the admissibility of exhibit YYN6 tendered, this document was objected to on the ground that it is a computer generated document and the claimant did not satisfy the provisions of Section 84(1) and (2) of the Evidence Act, 2011 for the admissibility of this document.

The claimant argued that the document is not a computer generated document within the meaning of Section 84 of the Evidence Act just because a computer was probably used in producing the document. Counsel relied on the case of LPDC V KALEJAYE (2016)6 NWLR (PT.1508) PP 424-425 where the court held;

“Section 84 of the Evidence Act does not constitute an ouster clause against the admissibility of other types of documents which though might have been processed partially through the computer, such as using the computer and its accessories to type, scan, photocopy or print documents, even where such documents may require other processes for completion, such as signing, stamping or franking. Such documents which though may have passed through the computer are admissible under other provisions of the Evidence Act such as under Section 83,87,89,90 and 104.

The document in question was produced by the 1st respondent and served on the CW2 in the form it is now sought to be tendered in evidence. I am of the view that the law does not require a litigant to satisfy the requirements of Section 84 of the Evidence Act 2011 in respect of a document that was produced and served on him by the opposing party as in this case.

The document is in its original form and was completed by filling other portions in green pen and signing same in blue, red and green pens. It is thus outside the categories of documents contemplated by Section 84 of the Evidence Act, 2011. See LPDC V KALEJAYE supra.

In any event, this court is empowered by Section 12 (2) (b) of the National Industrial Court Act, 2006 to depart from the provisions of the Evidence Act in the interest of justice. Seeing that the document was not produced by the claimant or witness, but served on CW2 by the 1st respondent in the form that it is sought to be tendered in evidence, it carries the original execution and the seal of the Civil Service Commission, I am of the opinion that it qualifies as a situation where the provision of Section 84 of the Evidence Act could be departed from in the interest of justice.

I am further fortified in this opinion by the judgment of Kanyip J in OGBODU V GLOBAL FLEET OIL &GAS LTD AND ONOR 2015 55 N.L.L.R (PT.187)201 NIC AT 315. Where my lord held;

“The argument of the defendants is that Exhibits C20 and C27 are inadmissible given Sections 84 (2) and (4), 89 (h) and 90 (1)(e) of the Evidence Act, 2011 and so should be discountenanced by the Court. Now by Section 12(2)(a) and (b) of the National Industrial Court (NIC) Act, 2006, this Court (a) may regulate its procedure and proceedings as it thinks fit; and (b) shall be bound by the Evidence Act but may depart from it in the interest of justice. In Kurt Severinsen v. Emerging Markets Telecommunication Services Limited (2012) 27 NLLR (Pt. 78) 374 at 454, this Court clarified the informality and flexibility expected of it when adjudicating; and citing the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, explained that the task of this court is to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing the Court is undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that the Court’s jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace. This process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.

Now, it must be noted that the defendants are not contesting the authenticity of Exhibits C20 and C27, only that they are computer printouts and were not tendered in accordance with the Evidence Act. The crux of the defendants’ objection is the manner of tendering Exhibits C20 and C27, not its evidential value (the informality enjoined on this Court by Section 12 of the NIC Act, 2006 and as explained in Kurt Severinsen v. Emerging Markets Telecommunication Services Limited does not permit the approach of the defendants). The interest of justice does not warrant this kind of technicality that the defendants are introducing here. Accordingly, it is my finding and holding that in the interest of justice, the relevant provisions of the Evidence Act cited by the defendants shall be departed from for the purposes of this judgment”.

 

On the whole, I hold that even if the document, exhibit YYN6 tendered, requires compliance with Section 84 of the Evidence Act to be admissible, seeing that the respondents are not contesting the authenticity of the document, I shall, in the interest of justice, depart from the said provision and I so depart from the provision of Section 84 of the Evidence Act and admit the document as exhibit YYN6.

Issue 1 is accordingly resolved in favour of the claimant.

Issue 2

On the competence of the sworn witness statement of DW1 on oath, the claimant has argued that the said witness statement on oath is incompetent and should be struck out because it was not signed before an officer entitled to administer oaths but in the office of the Attorney –General as admitted by the DW1 under cross examination and this violates the Evidence Act. Counsel cited and relied on the case of EROKWU & ANOR V EROKWU (2016) LPELR 1515 CAPPP17-22.

Replying on point of law, the learned silk urged the court to invoke the presumption of regularity in favour of the respondents by virtue of Section 168(1) of the Evidence Act, 2011.That the said witness statement only became the evidence of the witness after same was adopted on oath in the witness box and the witness cross examined. Counsel relied on AKPOKENIOVO V AGAS (2004)10 NWLR (PT.8810 P394 and OGUNDE V ABDULSALAM (2008) LPELR 49.

It is true that while testifying on oath on 8/2/2018, DW1 under cross examination testified thus;

“I signed my witness statement in the day time. I signed this witness statement in the office of the Attorney – General’s chambers after making corrections”.

By the authorities, it is trite that a witness statement not signed before a commissioner for oaths is incompetent, having violated Section 117(4) of the Evidence Act, 2011. See also

1.      ONYECHI EROKWU & ANOR  V. JACKSON NWABUFO EROKWU
2.      MADUAKOLAM  SAMUEL CHIDUBEM  V. OBIOMA EKENNA & 12 ORS (2008) LPELR-3913(CA)

3.      MARAYA PLASTICS IND. LTD. VS INLAND BANK NIG. PLC. (2002) 7 NWLR (765) 109 AT 120 

4.      BUHARI VS. INEC (2008 4 NWLR (1078) 546 AT 608 – 609

However, in all the above cases, Section 12 of the NIC Act was not in consideration. By Section 12 (2) (b) of the NIC Act 2006, this court is empowered to depart from the provisions of the Evidence Act in the interest of justice. In the circumstance of this case, the witness signed his witness statement in the office of the Attorney –General after correcting same. It was filed in the registry of this court, the commissioner for oaths signed same and on the 8/2/2018, the witness was sworn on oath before he adopted his witness statement and he was cross examined, expunging his evidence will occasion unnecessary hardship on the respondents while accepting his evidence will not in any way prejudice the claimant. Equity and the interest of justice demands that his witness statement be allowed and the Evidence Act departed from. This is what I shall do in this case.

 I am further fortified in this disposition by the decision of Lifu J in IKHUEMESO V DAAR COMM.PLC (2016) 64 N.LL.R (PT.227) P374 NIC AT P.430  where my lord held;

“It is trite law that a document of this nature not signed before the commissioner for oath will not qualify as a valid and duly sworn affidavit. The witness for the defence admitted that she signed the document at his office at the defendant premises. She offers no further explanation or evidence on it; Section 117(4) of the 2011 Evidence Act as amended says:-

“An affidavit when sworn shall be signed by the deponent….. in the presence of the person before whom it is taken.”

Certainly the witness statement on oath of the defendant witness which in any case is an affidavit is in complete breach of this rule or provision of the evidence law. An invocation of this provision means the defendant has no evidence or defence before this court. In my view, this will not meet the justice of this case. It is in this light that I invoke the provisions of the relevant applicable laws in labour jurisprudence in the interest of justice.

Section 37 (3) of the Trade Dispute Act Cap T 8 LFN 2004 says;

Subject to the provision of this Act and of any rules or regulations made under this Section, a body to which this Section applies

May regulate its procedure and proceedings as it think fit and shall not be bound to act in any formal manner.

Shall not be bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just”.

Section 12 (1) (2) (b) of the National Industrial Court Act 2006 also says:

“…….the court shall be bound by the Evidence Act but may depart from it in the interest of justice.”

The rules of this court which provides for the filling of witness statement on oath may be departed form in the interest of justice; order 5 (3) of the National Industrial Court Rules 2007 says:

“the court may direct a departure from these rules where the interest of justice so requires.”

Given the specialized nature of this court and its jurisdictional mandate, the informality and flexibility of our rules and procedure dictates that in the interest of justice, I depart from the application of the Evidence Act in respect of Exhibit MFI 08 and Exhibit MFI05, I so hold.

 

On the whole, I find that in the circumstance of this case, the interest of justice is for the court to depart from the provision of Section 117(4) of the Evidence Act and accept the sworn testimony of the DW1 for proper adjudication and I so depart from the provision of Section 117(4) of the evidence Act in the interest of justice.

Issue 2 is accordingly resolved in favour of the respondents.

Issue3

In considering the lawfulness or otherwise of the retirement of the claimant after 35 years of service but before attaining 60 years of age, it must be noted that some facts are not in contention, these facts are;

  1. That as at 30/6/2016 when he was retired by a retirement notice dated 18/8/2016, the claimant was aged 52 years but he had served the state for 35 years from 1/7/1981 to 30/6/2016.
  2. That having been born on 18/10/1964, the claimant will be 60 years on 18/10/2024.
  3. That the claimant can only retire in line with Section 127(2) of the 1999 Constitution as amended read together with the relevant law to that effect.

Having considered the evidence, exhibits and written submissions of both counsel, it is the opinion of this court that the contentions relevant to the determination of this issue are as follows;

  1. Whereas the respondents contend that the Sokoto State Civil Service Rules 2001 , the Sokoto State Contributory Pension Scheme  Law, 2007 and the Sokoto State Audit Law of 1996 as modified in 1999 are applicable for the determination of the retirement age of the Auditor –General, the claimant on the other part contends that only the Sokoto State Audit Law of 1996 is applicable and the 1999 modification of the 1996 Audit Law is ultra vires the power of the Governor and therefore invalid.
  2. Whereas the claimant contends that Section 127(2) of the 1999 Constitution should be given its literal and natural grammatical meaning to accommodate only ‘age’ as a criteria for the retirement of the claimant, the respondents contend that the Section should be interpreted liberally to accommodate ‘years of service’ as a criteria for the retirement of the claimant.

These contentions shall be resolved by answering the following questions;

  1. How should Section 127(2) of the Constitution be interpreted?
  2. Which Law of Sokoto State is applicable for the determination of the retirement age of the Auditor-General of Sokoto State?
  3. Is the 1999 modification of the Audit Law of Sokoto state 1996 valid in view of Section 127(2) and 315 of the 1999 Constitution as amended?

Before doing this, it is important to dispose of another issue raised by the claimant. The claimant has pleaded, testified and submitted that the CW2 was retired at the age of 60 years in accordance with the Constitution. The respondents contended that the CW2 retired in 2006 after 35 years of service in accordance with the law. That Cw2 was among those who were over due for retirement as at 2006.

 The contention that CW2 retired in 2006 is an argument based on Exhibit BMR8 compiled on 22/2/2007. Exhibit BMR8, particularly page 38 thereof shows that CW2’s retirement date is 2/2/2006 and his retirement is by years of service (35). However, on the facts, exhibit YYN5 shows that his retirement notice was dated 16/11/2012 and his retirement was stated to be with effect from 12/12/2012 and his date of birth is stated to be 12/12/1952. CW2 was 60 years on 12/12/2012. On exhibit YYN6, CW2’s period of service is stated to be 2/2/71 to 12/12/2012.

By the facts in exhibits YYN5 and YYN6, I find that the CW2 was born on 12/12/ 1952, he joined Sokoto State Public Service on 2/2/1971 and was retired on 12/12/2012 on attainment of 60 years of age after serving the state for 41 years.

In making this argument, learned claimant’s counsel submitted in his final written address as follows;

“The conduct of the defendant has shown that the Auditor –General of the state is to retire after he attains 60 years of age as was the case with the retirement of CW2, Yusuf Yahaya Nawawi who was retired at 60 years of age after 41 years of active service in the Sokoto State Public Service because the defendants knew that CW2 was to retire after 60 years of age and not after 35 years of service”.

Claimant is thus invoking the doctrine of legitimate expectation by arguing that the defendant has been acting in a given way that he is entitled to require the practice to continue in his case; this is called ‘the doctrine of legitimate expectation, though counsel did not use the term.

The court has found as a fact that CW2 retired at the age of 60 years after serving the state for 41 years. However, it must be pointed out here that the fact that a public authority has been acting in a given way does not in itself amount to the law, such action on the part of the public authority does not serve as an estoppel so as to preclude it from acting otherwise for good reason and also such action on the part of the public authority is usually superseded or frustrated by the operation of statute. See

FEDERAL BOARD OF INLAND REVENUE v. HALLIBURTON (WA) LIMITED (2014) LPELR-24230(CA)  per Ikyegh, J.C.A where the court held thus;

The doctrine of legitimate expectation is not in the realm of estoppel. The court below thought it is a specie of estoppel. lt slipped. The cross-appellant is right to submit that the doctrine is not an estoppel. What the doctrine postulates is that where a public body or person acting in public authority has issued a promise or has been acting in a given way the members of the public who are to be affected by the scheme of conducting public affairs in the charted manner would, by law, require the promise or practice to be honoured or kept by the public body or person acting in public authority, save where there exists sound basis not to so insist on the settled scheme of conducting public affairs. The doctrine, therefore, enjoins public bodies to be fair, straight-forward and consistent in their dealings with the public.

In other words, the doctrine of legitimate expectation is based on the existence of regular practice by a public body which the claimant can reasonably expect to continue or subsist and thus relies on the state of affairs to conduct or arrange his business or affairs in anticipation of the availability of the regular practice to cater for the case of the claimant. Fair and open dealing are the pillars of the doctrine. And fairness requires that the exercise of the doctrine of legitimate expectation be moored to full disclosure or utmost good faith by the potential beneficiary of the doctrine. See the apt English case of R.V. Board of Inland Revenue (supra) 91 at 111 (per Bingham, LJ).

…

Further in the useful case of Ex P. Begbie (2000) 1 WLR 1115 it was held that the application of the doctrine of legitimate expectation was aborted or frustrated by the operation of statute.

A similar result was reached in the case of Birkdale District Electric Supply Co. Ltd. (1926) AC 355 at 364 followed in Ex P. Liverpool Taxi Fleet Operators’ Association (1972) 2 Q.8., 299 to the effect that a person or public authority entrusted with statutory functions for public purpose cannot compromise the functions by entering into any agreement or taking any action incompatible with the discharge of the statutory functions.

Since Section 26 of CITA supersedes Exhibits B, C and S, the doctrine of legitimate expectation lavishly argued by the cross-appellant yields ground to the clear words of Section 26 of CITA. See Administrative Law by Wade (supra).

Similarly, in the present case, Section 127(2) of the 1999 Constitution as amended, read together with the relevant law must supersede exhibits YYN5 and YYN6. The doctrine of legitimate expectation must give way to the clear words of these statutes. The implication is that a finding on whether or not CW2 was intentionally retired in 2012 in line with the law or was overdue for retirement since 2006 will not affect the outcome of this case in any way. I shall say no more on this.

Another important argument of the claimant counsel to be considered here is his submission on the case of THEOPHILUS OGBOJEH OMONIYI V THE GOVERNOR OF EDO STATE &ANOR 2004) 5 NWLR (PT.856) P.175. Counsel submitted thus;

“My lord, above all, the issue of the tenure of state Auditor General has been settled by the Court of Appeal Benin Division in the case of THEOPHILUS OGBOJEH OMONIYI V THE GOVERNOR OF EDO STATE &ANOR 2004) 5 NWLR (PT.856) P.175. In the lead decision, Coomassie JCA (As he then was of blessed memory) held that state Auditor –General is to vacate office when he attains the age of retirement not by putting in 35 years of public service.”

 

I have carefully read the judgment of my lords in the case of Omoniyi supra, the issue of whether 35 years of service qualifies as ‘retiring age’ in section 127(2) of the constitution was not considered in that Judgment. In that judgment, the court considered the laws submitted as applicable for the determination of the retirement age of the Auditor-General of Edo state in 2000.

The court held in the lead judgment per Coomassie JCA at page196 paragraph D thus;

“It is obvious that this Section 127(2) of the 1999 constitution of the Federal Republic of Nigeria cannot be read in isolation”.

The court then came to the conclusion that the law to be read together with Section 127(2) in determining the retirement age of the Edo State Auditor –General as at 2000 was the Pension Act 102 of 1979 which provided for a statutory retirement age of 60 years. It was on that basis that the court held that the retirement age of the Auditor- General of Edo state was 60 years and not 35 years of service.

The lead judgment was explicitly explained by Akaahs J.C.A in his consenting judgment at page 204 paragraph D-E thus;

“My learned brother, Muntaka Coomassie J.C.A has reproduce in extensor the arguments of the learned counsel and in considering the issue raised in the appeal came to the conclusion that even though the appellant had served up to 35 years, the appellant cannot be lawfully removed from office as the Auditor –General of the state since he has not attained 60 years as stipulated in section 127(2) of the Constitution read along with the Pension Act of 1979.”

In the circumstance of this case, the court must consider the interpretation of ‘retiring age’ in Section 127(2)  of the Constitution before determining which law of Sokoto State is to be read along with Section 127(2) of the Constitution in determining the retirement age of the Auditor –General of Sokoto State. This is what I shall now turn to.

On interpretation of Section 127(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, both counsel are agreed that where the words of a statute are clear, precise and unambiguous, the words should be given their natural grammatical meaning except where doing so will lead to absurdity. The learned SAN submitted instructively in his final written address thus;

“The wordings of the provisions of Section 2 of the Sokoto state contributory pension scheme Law No.4 of 2007 and  Public Service Rules quoted above are clear, precise and unambiguous hence the only thing that can be done is to expound those words in their natural and ordinary sense because in such situations the words themselves best describe the intention of the law giver. We cannot travel outside the wordings of the provisions on a voyage of discovery. It is a cardinal principle of interpretation that one cannot import into a statute what is not there. This is in accord with the literal rule of interpretation as well as the maxim of “expression unius est exclusion alterius” meaning “what is stated in statute expressly excludes that which is not stated in statute”

 

It must be observed here that the above stated principle of interpretation of statute as submitted by learned counsel is an unassailable position of the law. What is left to be added is that since the pension law and the Public Service Rules are said to be made pursuant to the Constitution, the first place to start the application of this principle of interpretation is the Constitution which in this instance is Section 127(2) of the 1999 Constitution as amended.

The claimant contends that Section 127(2) of the 1999 Constitution should be given its literal and natural grammatical meaning to accommodate only ‘age’ as a criteria for the retirement of Auditor – General, but the respondents contend that the Section should be interpreted liberally to accommodate ‘years of service’ as a criteria for the retirement of Auditor – General. This is what the learned SAN submits with respect to interpretation of Section 127(2) of the Constitution;

“There are two canons of interpretation of Constitutions; the first canon relevant to both issues is the canon which prescribes that the language used in a Constitution must be interpreted generously. That the language of a Constitution should not be interpreted in a narrow or legalistic way, but rather broadly or liberally and purposively so as to give effect to its spirit”.

 

The learned silk however did not address the court on whether there was any ambiguity in Section 127(2) of the Constitution or how a literal interpretation will lead to any absurdity or conflict with any other Section of the Constitution thus calling for a liberal interpretation to cure same.

The first approach to interpretation of the Constitution or any statute is the literal interpretation and any other approach can only be resorted to where there is a doubt or ambiguity. See

ENVIRONMENTAL HEALTH OFFICERS REGISTRATION COUNCIL OF NIGERIA v. LAGOS STATE WASTE MANAGEMENT AUTHORITY & ORS(2012) LPELR-15418(CA)
where the court held;

The Law is already settled on interpretation of statute, that the court must examine the ordinary literal meaning. The Supreme Court in the case of Attorney General Ogun State V. Alhaji A. Abernagba & ors. (1985) 4 S.C. (part 1)288 at 383, stated as follows:-

“In the interpretation of statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous then the ordinary literal meaning must be given to them for then the intention of the maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation. See Awolowo v. Shagari (1979) 6 -9 S.C. 51.”

In ALHAJI NUHU MUHAMMED V. ALHAJI ADAMU AL-HASSAN AJINGI (2013) LPELR-20372(CA) the court held;

It is elementary that where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regards to the nature and circumstances of the case. Therefore, a court of law is without power to import into the meaning of a word, clause or section of a statute something that it does not say. Indeed, it is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express – Awolowo V. Shagari (1979) 6-9 SC 51, Rabiu V. State (1980) 8-11 SC 130, Bronik Motors Ltd V. Wema Bank Ltd (1983) 1 SCNLR 296 and Federal Republic of Nigeria V. Osahon (2006) 5 NWLR (pt 973) 361

Also, in AMAECHI -V- INEC & ORS (2008) LPELR  446 (SC) the Supreme Court held  per Mohammed JSC that:-

“The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the Statute as a whole. This is because it is the duty of the judge to construe the words of a Statute and give those words their appropriate meaning and effect”.

See also

1.      SHERIFF & ANOR v. PDP & ORS (2017) LPELR-41805(CA)
  1. ADEGBENRO -V- AKINTOLA (1962) 1 All NLR 465.
  2. LOCAL GOVT. SERVICE COMMISSION EKITI STATE &ANOR V MR. M.K. BAMISAYE (2017)11ACELR P.217

  1.   TINUBU V I.M.B SECURITIES PLC (2001)16 N.W.L.R (PT.740) P670 at p708,
5.            SDV NIGERIA LIMITED v. PHILIP KAYODE OLUSEGUN OJO & ANOR(2016) LPELR-40323(CA)

6.      AWUSE -V- ODILI & ORS (2003) LPELR  666 (SC)

7.      AMAECHI v. I.N.E.C (2008) 5 NWLR (Pt. 1080) 227 S.C.

8.      KRAUS THOMPSON ORGANISATION V NIPSS (2004) 17 NWLR (Pt. 901) 44,

 

Section 127(2) of the Constitution of the Federal Republic of Nigeria1999 as amended provides;

 

(2)  An Auditor-General shall not be removed from office before such retiring age as may be prescribed by Law, save in accordance with the provisions of this Section.

 

The issue here is ‘retiring age’ or ‘retirement age’. What then did the Constitution drafters mean when they referred to “retiring age’ in Section 127(2) of the Constitution?

Words used in the Constitution must be given their clear, unambiguous ordinary literal meaning except where doing so will result in absurdity or conflict with other provisions of the Constitution. See IFEZUE VMBADUGA& ANOR (1984)5 SC 79 at 101; TINUBU V I.M.B.(2001)10 S.C.N.J. 11-12.

 

The literal meaning of ‘retiring age’, ‘retirement age’ or ‘age of retirement’ according to Collins English Dictionary on line, https://www.collinsdictionary.com. is “the age at which people usually stop working, usually when they are eligible for social security or pension”.

See also www.investorwords.com  where ‘retirement age’ is defined as “age at which an individual can retire from his or her position and receive all the benefits guaranteed under a retirement plan such as 401K or 403B.The standard retirement age in the United States is 65”.

 

In the case of judicial officers, Section 291(1) and (2) provide as follows;

 

291.   Tenure of office and pension rights of judicial officers

(1)  A judicial officer appointed to the Supreme Court or the Court of Appeal may retire when he attains the age of sixty-five years and he shall cease to hold office when he attains the age of seventy years.

(2)  A judicial officer appointed to any other court, other than those specified in subsection (1) of this Section, may retire when he attains the age of sixty years and he shall cease to hold office when he attains the age of sixty-five years.

 

Section 127 (2) provides to the effect that an Auditor-General shall not be removed from office before his retiring age . Section 292(1) similarly provides;

 

292.   Removal of judicial officers from office

(1)  A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances-

 

Here it is very easy to see that ‘age of retirement’ in Section 292(1) means biological age of 60, 65 and 70 in view of Section 291(1) and (2).There is no apparent reason why ‘retiring age’ in Section 127(2) of the same Constitution should be differently interpreted.

 

It is my view that this literal meaning of ‘retirement age’ does not cause any absurdity in interpreting Section 127(2) or any other Section of the 1999 Constitution but it is rather supported by the meaning accorded to the same words in Sections 291 and 292 of the same Constitution. I find no reason to embark on a voyage of discovery or to import into section 127(2) of the Constitution what is not there.

 

I accordingly find that ‘retiring age’ in Section 127(2) of the Constitution is a reference to biological age as a criterion for retirement and it does not admit of 35 years of service   as a criterion for retirement. I so hold.

 

I am of the firm view that the learned Professor J.O. Akande in her book, ”The Constitution of the Federal Republic of Nigeria 1999”, cited by the learned SAN (though not a judicial precedence) actually expressed this view at pages 91 and 92 of her said book when she commented on section 87(1) and (2) of the 1999 Constitution relating to retirement of Auditor- General of the Federation thus;

“He can be removed only for misconduct, or infirmity of mind or body sufficient to make him unable to carry on with his duty. Otherwise he can keep his office until retirement age, fixed at 65 for all civil servants. There is no reason to assume that a different age limit will be prescribed for him, especially as he is recommended by the Federal Civil Service Commission.”

There is no ground for arguing that the above commentary of the learned professor has accommodated 35 years of service as a criteria for the retirement of the Auditor-General of the Federation given her apparent deliberate choice of the words ‘retirement age’ and ‘age limit’.
 

On which law of Sokoto State is applicable for the determination of the retiring age of the Auditor –General, the learned SAN submitted for the respondents that the applicable laws are;

  1. The Sokoto State Public Service Rules 2001.
  2. The Sokoto State Contributory Pension Scheme  Law, 2007 and
  3. The Sokoto State Audit Law of 1996 as modified in 1999.

The claimant on the other hand contends that only the Sokoto State Audit Law of 1996 is applicable and the 1999 modification of the 1996 Audit Law is ultra vires the power of the Governor and therefore invalid.

The court shall therefore consider the applicability of these laws one after the other.

On the applicability of the Public Service Rules, it must be noted that the Public Service Rules are made pursuant to Section 197(1) (2) and part II of the third schedule to the 1999 Constitution as amended.

Section 197(1) (2) provides as follows;

  1. State Commissions

(1)  There shall be established for each State of the Federation the following bodies, namely—

                       (a)        State Civil Service Commission;

                        (b)        State Independent Electoral Commission; and

                        (c)        State Judicial Service Commission.

(2)  The composition and powers of each body established by subsection (1) of this Section are as set out in Part II of the Third Schedule to this Constitution.

 

Part II (A) of the Third Schedule to the Constitution in paragraph 2(1) relating to State Civil Service Commission states as follows;

  1. (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:

(b) dismiss and exercise disciplinary control over persons holding such offices.

Here it is clear that the Constitution did not prescribe the criteria for retirement for civil servants from these provisions thus leaving it at the discretion of the commission to determine. Accordingly the Public Service Rules has prescribed two criterions namely 1.retirement by age and 2, retirement by years of service and it does not violate any provision of the Constitution.

The Rules are not made pursuant to nor did it contemplate Section 127(2) of the Constitution by making any specific provision for the retirement age of Auditor-General. The rules cannot and do not apply to the retirement of the Auditor- General of Sokoto State.

Looking at it from another angle, Rule 01001 of the Sokoto State Public Service Rules provides thus;

These Public Service Rules apply to all officers except where they conflict with specific terms approved by the State Government and written into the contract of employment or letters of appointment.

 In so far as the holders of the offices of:

The Executive Governor

The Deputy Governor

Chief Judge and Judges of the High Court of the State

Grand Kadi and Kadis of the Shari’a Court of Appeal of the State

The Chairmen and members of the following executives bodies, namely

The State Civil Service Commission

The State Independent Electoral Commission

The Auditor General of the State

and any other similar organs that derive their appointments from the Constitution of the Federal Republic of Nigeria are concerned these Rules apply only to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of service and any other applicable to these officers are concerned. (underlining supplied)

As rightly submitted by the learned SAN, the Auditor General of Sokoto State derives his appointment from Section 126 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. His removal, discipline, and retirement are provided for in Section 127 of the said Constitution. What is left is prescription of the age at which he shall retire.

Section 127 (2) of the Constitution talks of “such retiring age as may be prescribed by law”. This demands a law that must specifically provide for the retiring age of the Auditor –General, even if it is a general law.

The Sokoto State Public Service Rules 2001 does not have any Section that specifically provides for the retirement age of the Auditor –General. This court has earlier held that retiring age means biological age. Accordingly, any provision in these Rules that is inconsistent with the Constitution shall not apply to the Auditor-General.

Rule 02809 of the Sokoto State Public Service Rules provides as follows;

The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. No officer shall be allowed to remain in the service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.

The provision of Rule 02809 of the Sokoto State Public Service Rules which provides for 35 years of service as an alternative retirement age is inconsistent with and in conflict with Section 127(2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended; the rule therefore cannot apply to the Auditor – General.

I accordingly find and hold that the Sokoto State Public Service Rules by itself excludes its application to the state Auditor- General, it is also not applicable for want of a specific provision for the retirement age of Auditor-General and Rule 02809 is not applicable for being inconsistent with Section 127(2) of the Constitution.

On the applicability of the Sokoto State Contributory Pension Scheme Law, 2007 for the determination of the retiring age of the Auditor –General, I have taken my time to go through the entire 32 Sections of the said Law, nowhere did it talk about retirement of civil servants or public officers let alone the state Auditor- General. The definition of retirement age in Section 2 without its relevance in the body of the law is to my mind useless.

This besides, the law suffers the same defect as the  Public Service Rules in that it does not have any Section that specifically provide for the retirement age of the Auditor –General and its provision of 60 years of age or 35 years of service is contrary to Section 127(2) of the Constitution and so inapplicable.

On the applicability of the Audit law of 1959 as amended in 1996, it is pertinent to note that it is an existing law today. The Sokoto State Audit law 1959 is part of the revised laws of Sokoto State 1996, it is CAP11. The revised laws of Sokoto State 1996 have no commencement date but Section 9(2) of the revised edition of the laws states thus;

9(2) “The Governor may by order bring the revised edition into force on the date specified by him in the order”.

The Governor of Sokoto State, Alhaji Attahiru Dalhatu Bafarawa had exercised his power by virtue of Section 9(2) of the revised edition of (laws of Sokoto State Nigeria) to bring into force the revised Laws of Sokoto state 1996 with effect from 24th January, 2000 by an order titled “the revised edition into force Order Law of Sokoto State Order 2000” published in Sokoto State of Nigeria Gazzette, No.1, vol.35 of 21st February, 2000. The order provides;

BRINGING OF REVISED EDTION INTO FORCE

LAWS OF SOKOTO STATE ORDER 2000

WHEREAS Section 9(2) of the Revised Edition (Laws of Sokoto State of Nigeria) empowers the Governor to bring into force the revised edition on a date specified by him in an order;

NOW THEREFORE, I, Alhaji  Attahiru  Dalhatu  Bafarawa (Garkuwan Sokoto) Governor of Sokoto State of Nigeria do hereby in exercise of the  power aforesaid order that the revised laws of Sokoto State ,1996 edition shall come into force on Monday 24th January,2000.

The audit law of Sokoto state as revised in 1996 therefore came into force in sokoto state on Monday 24th January, 2000. It is still an existing law.

Section 4 of the said law provides thus;

“The Director of Audit shall vacate his office when he attains the age of sixty years”.

The 1st schedule of the revised laws 1996, titled ‘modifications’ provide thus;

 “Director of audit ………….. Auditor –General”.

Accordingly, ‘Director of Audit’ in Section 4 is to be read as ‘Auditor-General’.

The Audit law of 1996 being an existing law which specifically provides for the retirement age of the Auditor-General is accordingly the appropriate Law in Sokoto State for the determination of the retirement age of the Sokoto State Auditor –General. I so hold.

Should I be wrong in finding that the Sokoto State Public Service Rules 2001 and the Pensions Contributory Scheme Law 2007 are not applicable for the reasons earlier advanced, I will still hold that the Audit Law of 1996 applies to the exclusion of these other laws because the Audit Law is a specific law on Auditor –General and specifically provides for his retirement age while the Public Service Rules and the Pension Scheme Law are general laws. The position of the law, as rightly submitted by claimant’s counsel, is that where there is a specific law on a subject matter and a general law on the same subject matter, the specific law shall prevail.

In GOD BLESS EZENWATA NIGERIA LIMITED v. SUNDAY ODIOKU & ORS
(2015) LPELR-24438(CA) the court  per Ogakwu JCA held;

 

“It seems that the law is settled that in circumstances such as this, it is the specific legislation, id est, the Direct Labour Agency Law, as opposed to the general legislation, id est, the Public Officers Protection Law that would apply. Indeed in circumstances that are not entirely dissimilar, this Court per Ogunwunmiju, JCA in INTEGRATED DATA SERVICES LTD vs. ADEWUMI (2013) LPELR (21032) 1 at 14 held as follows:

“On the applicable limitation law in the circumstances of this case, I am of the view that a specific law made on an issue overrides general law made on same issue. See NDIC vs. Okem Enterprises Ltd. & Anor (2004) 4 SCNJ 244. Thus where there is a specific provision as in this case, it prevails over general provision on the same subject matter”.

 

Similarly, it was held in ARAKA v. EGBUE (2003) 17 NWLR (PT.848)1 thus;

 

“There is also the related issue and it is that where a court of law is exposed to two provisions; one general and the other specific, the court will fall upon the specific provision, in the event of an apparent conflict”.
 

In the circumstance, the Audit Law of Sokoto State 1996 remains the applicable law for determining the retirement age of the Auditor- General of Sokoto State.

On the applicability of the Modification of Laws (Sokoto State) Order No 1 of 1999, the learned SAN argued that by virtue of the said order, Section 4 of the Audit Law of 1996 has been amended to read, “The Auditor General of the state shall retire upon attainment of 60 years or 35 years of pensionable service whichever is earlier’ in order to bring it in line with the Constitution.

The claimant’s counsel argued that the said modification is ultra vires the power of the Governor as provided in Section 315 of the Constitution and thus invalid.

Counsel submitted further that where an existing law was already in conformity with the Constitution, any purported amendment under Section 315 is null and void and will not be allowed to stand.

Section 135 of the 1999 Constitution as amended provides as follows;

  1. Existing law

(1)  Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be—

(a)        an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and

(b)        a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2)  The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.

(3)  Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say—

       (a)        any other existing law;

       (b)        a law of a House of Assembly;

       (c)        an Act of the National Assembly; or

       (d)        any provision of this Constitution.

(4)  In this Section, the following expressions have the meanings assigned to them, respectively—

       (a)        “appropriate authority” means—

       (i)        the President, in relation to the provisions of any law of the Federation;

(ii)        the Governor of a State, in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State; or

(iii)        any person appointed by any law to revise or rewrite the laws of the Federation or of a State;

(b)        “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this Section comes into force or which, having been passed or made before that date, comes into force after that date; and

       (c)        “modification” includes addition, alteration, omission or repeal.

Claimant’s counsel outlined the requirement of a valid modification pursuant to Section 315 thus;

  1. The law, Act or Section must be such that with the coming into force of the 1999 Constitution it did not conform with the provision of the Constitution.
  2. The law, Act or Section must be modified in such a manner that it will be in conformity with the provision of the Constitution.

iii. The law, Act or Section must be modified in such a manner that it will not breach the Constitution.

What is left to be added here as a fourth requirement, which should chronologically rank first, is that the Law sought to be modified must be an existing law as at the time of the modification.

The  Sokoto State of Nigeria Official Gazette, Modification of Laws (Sokoto State) Order No 1 of 1999,dated 31st August 1999, reads as follows;

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999

MODIFICATION OF LAWS (SOKOTO STATE) ORDER, 1999

(31ST AUGUST 1999)

S.S.L.N NO.1 OF 1999

 In exercise of the powers conferred on me by subsections (2) and (4) of Section 315 of the Constitution of the Federal Republic of Nigeria,1999  and of all other powers enabling me in that behalf, I, Alhaji  Attahiru  Dalhatu  Bafarawa (Garkuwan Sokoto) Governor of Sokoto State hereby make the following order:-

  1. This order may be cited as the Modification of Laws (Sokoto State) order, 1999, and shall be deemed to come into operation on 31st day of August, 1999.
  2. In this order, “Existing Law” means a law which by virtue of the Constitution of The Federal Republic of Nigeria, 1999 has effect as a law of sokoto state.
  3. The existing Laws specified in the second schedule are hereby modified in the manner specified under the respective short titles thereof.

………

AUDIT LAW (LSS 1996.CAP11)

In Section 4 delete and substitute with following new Section;

 “The Auditor General of the state shall retire upon the attainment of 60 years or 35 years of pensionable service whichever is earlier”

In effect, the then Sokoto State Governor knew and intended to modify laws which by virtue of the Constitution of The Federal Republic of Nigeria, 1999 had effect as laws of Sokoto State  on 31st August,1999 with the aim of bringing them into conformity with the Constitution.

 In  A.G. ABIA STATE v. A.G. FEDERATION (2003) 4 NWLR (PT.809)124; (2003) 1. S.C. (PT. II)1, the supreme court Per Belgore JSC held;
   

It is noteworthy that the Constitution, itself, has defined “appropriate authority” for the purpose of an Act of National Assembly for modification as the “President.” It also defines “modification” as follows in S. 315(4)(c):
“315(4)(c) ‘modification’ includes addition, alteration, omission or repeal.”
Thus the President has wide power when modifying any existing law to bring it in conformity with the Constitution. It is true that “separation of powers” is essential to a healthy democracy, the power given the President and also to State Governors in existing law of the State by the Constitution is not an abuse of the principle or doctrine of separation of powers, it is essential to giving meaning to an existing law so that the Constitution itself is not abused. (Underlining supplied)

 Ogundare JSC in the same judgment held thus;

Section 315(2) enjoins the President to effect such modifications in the text of an existing law as he may consider necessary or expedient to bring the law into conformity with the provisions of the Constitution. … Thus, in exercising his power under Section 315(2), the President may add to, alter, make omissions in or completely repeal any provision of an existing law in so far as it is necessary or expedient to bring such existing law into conformity with the provisions of the Constitution. The power given to an appropriate authority (such as the President) by subsection (2) of Section 315 cannot in my respectful view, mean just dotting the “i’s” and crossing the “t’s” in an existing law. It goes further than that. It is precisely that the substance of an existing law, or part of it, is not in conformity with the Constitution that the appropriate authority is empowered to modify it either by way of “addition, alteration, omission or repeal” to bring the law into conformity with the Constitution. Hence the limit to the power given in subSection (2) of Section 315 is conformity with the provisions of the Constitution.
(Underlining supplied)

There are two pertinent questions to ask at this stage. The first question is, ‘was the Sokoto State Audit Law of 1996,Cap11 an existing law or a law having effect as a law of Sokoto State as at 31st August 1999?. We have seen earlier in this judgment that the 1996 revised edition of the Sokoto State Laws only came into effect on Monday 24th January, 2000 by an order made on 21st January 2000. As at 31/8/1999 the existing Audit law in sokoto state was the Audit law of 1959 since the 1996 revised edition of the law had not come into effect as yet. Section 315 (2) (4) of the Constitution does not confer the power on the Governor to modify a law that is yet to come into effect and from Section 2 of the said Modification Law reproduced above, the Governor intended to modify only any law that had effect as a Law of Sokoto State as at 31/8/1999.

The power to modify or amend a law yet to have effect lies squarely with the state House of Assembly and for the Governor to purport to do so will amount to an unconstitutional usurpation of the legislative powers of the House of Assembly.

For this reason, I find the Modification of the revised edition of the Audit Law of Sokoto State 1996 by the Governor of Sokoto State on 31/8/1999 before the law came into force on 24th January,2000 to be invalid, same being ultra vires the power of the Governor, null , void and of no effect. I so declare.

The implication of this is that Section 4 of  the Audit law of Sokoto State ,CAP11 1996 remains unmodified and it reads;

“The Auditor –General shall vacate his office when he attains the age of sixty years”.

The court has earlier in this judgment held that Section 127(2) of the Constitution admits only of ‘age’ as a criteria for retirement of Auditor –General, that being the case, when the 1999 Constitution came into effect on 29/5/1999, Section 4 of the Audit Law of 1996 was already in conformity with the Constitution. This means that if the 1996 Audit Law were to be an existing Law on 31/8/1999, the modification of Section 4 of the Audit law would still have brought it into conflict with Section 127(2) of the Constitution and contrary to Section 135 of the Constitution.

Accordingly, any law pursuant to  Section 127(2) of the Constitution which provides for ‘years of service’ as a criteria for retirement in is inconsistent with that Section and by Section 1(3) of the same Constitution, null and void to that extent of inconsistency.  The Modification Law of 1999, in addition to providing for 60 years as a criteria for retirement, also provides for 35 years of service as a criteria for retirement, the 35 years of service as a criteria for retirement is inconsistent with the provision of Section 217(2) of the Constitution and is hereby declared null and void. The modification of the Audit Law by the Modification Law of Sokoto State 1999 is hereby declared invalid for inconsistency with Sections 135 and 127(2) of the Constitution.

 Even if Section 127(2) of the Constitution can be interpreted to accommodate 35 years of service, 60 years of age is not in any way in conflict with that Section. Where the provision of an existing law is not in conflict with the Constitution, the Governor lacks the power to modify the law as Section 315 of the 1999 Constitution as amended does not confer on him such power. It must be pointed out that the Governor cannot, under section 315 of the constitution, modify a Law already in conformity with the constitution just to bring it into conformity with other state laws, this is the function of the state House of Assembly.

 For this reason too, I find that the modification of Section 4 of the Audit law of Sokoto State 1996 CAP11 is ultra vires the power of the Governor, null, void and of no effect. I so declare.

The implication of this is that I find that the Law of Sokoto state to be read along with Section 127(2) of the 1999 constitution as amended in determining the retirement age of the Auditor-General of Sokoto State is the Audit Law of Sokoto State, CAP 11, 1996. Section 4 of the Audit Law of Sokoto State, CAP11, 1996 reads as follows;

“The Auditor –General shall vacate his office when he attains the age of sixty years”.

Accordingly, by reason of Section 127(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended read along with section 4 of the Audit Law of Sokoto State, CAP11, 1996, the claimant cannot be lawfully retired as Auditor-General of Sokoto State after 35 years of service, the claimant can only be lawfully retired from office as Auditor –General of Sokoto State on attainment of 60 years of age.

Issue 3 is according resolved in favour of the claimant.

In the circumstance, the claimant has proved his entitlement to the main reliefs and the main reliefs I, II, III, and IV are hereby granted as prayed.

For the avoidance of doubt, the Court hereby makes the following declarations and orders as follows;

  1. A DECLARATION that the retirement date of the Claimant from the office of the Auditor-General of Sokoto State is the date of his attainment of the retirement age of sixty (60) years which is the 18th day of October, 2024.
  2. A DECLARATION that the Claimant’s retirement as the Auditor-General of Sokoto State before his retirement age which is 60 years is unconstitutional, wrongful, illegal, null and void and of no effect whatsoever.
  3. AN ORDER setting aside the Letter for Notification of Retirement dated 18th August 2016 served on the Claimant as null and void and of no effect.
  4. An ORDER REINSTATING the Claimant forthwith to his office as Auditor-General of Sokoto State.
  5. AN ORDER for the payment to the claimant of all his salaries, allowances and other entitlements from the date of his unlawful retirement until the date of this judgment.

Judgment is read and entered accordingly.

………………………………………………………….

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO

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