SOKOTO STATE GOVT & ANOR v. NAWAWI
(2020)LCN/15551(CA)
In The Court of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, September 11, 2020
CA/S/35/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
1. SOKOTO STATE GOVERNMENT 2. ATTORNEY GENERAL OF SOKOTO STATE APPELANT(S)
And
SAMBO YAHAYA NAWAWI RESPONDENT(S)
RATIO:
PRINCIPLE GOVERNING THE INTERPRETATION OF STATUTE
Since the decision in the old case of MAIZABO V. SOKOTO N. A. (1957) 2 FSC 13, (1957) SCLR 142, the Courts of this Country have consistently been guided that in the interpretation or construing the provisions of a statute, it is important to have in mind the clearly defined objectives of such a statute. It is against this posture of consistency that the Supreme Court held in the case of VICTOR ADEGOKE ADEWUMI & ANOR. V. ATT. GEN. OF EKITI STATE (2002) 1 SC 47 that when a Court is faced with construction, interpretation and application of a statutory provision to the facts ascertained by it in a case, it must read the statute to ascertain whether and how its meaning relates to the case in controversy, or if the language. i.e. words or meaning ascertained from that language resolve the controversy, the inquiry terminates there; but if the language or meaning does not resolve the controversy then the Court must adjust and apply an appropriate judicial rule to decide and resolve the issue in controversy. Earlier in the case of MOBIL OIL NIG. LTD V. FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 53 our apex Court while relying on a number of its previous decisions remarked that the general rule for construing a statute is where its words are clear, the Court must give effect to their literal meaning. And it is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within its body or external aid from statutes that are in pari materia in order to resolve the ambiguity or avoid doing injustice.
Also, since the decision in AWOLOWO V. SHAGARI (1979) 6 – 9 SC 51 at 97, it has been settled and well established that the Court, in interpreting the provisions of a Statute or Constitution, must read together related provisions of the Constitution in order to discover the meaning of the provisions. The Court must not interpret related provisions of a Statute or Constitution in isolation and then destroy in the process the true meaning and effect of particular provisions. This was cited and applied by Oguntade, J.S.C. in AMAECHI V. INEC & ORS. (2008) 2 FWLR (PT. 414) 1 1443. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
APPROACH TO CONSTITUTIONAL INTERPRETATION
In one of the most referred cases in our Courts on the interpretation and application of the Constitution, NAFIU RABIU V. STATE (1980) LPELR – 2936 (SC), the Supreme Court per Obaseki J.S.C. focused on the subject and observed that a constitution is a legal instrument giving rise among other things to individual rights capable of enforcement in a Court of Law. Against the backdrop of this definition, His Lordship admonished that respect must be paid to the language which has been used and to our laws, traditions and usages which have given meaning to that language. The immutable words of Udo Udoma, J.S.C. in the case of RABIU V. STATE (supra) have remained a shining light in our judicial firmament. His Lordship explained and adopted the generous, engaging and robust approach to Constitutional interpretation which involves liberalism, purposiveness and avoidance of legalistic and pedantic approach with the overall objective of giving effect to the real intendment and the spirit of the Constitution. See also Adekeye, J.S.C. inATT. GEN. OF NASSARAWA STATE V. ATT. GEN OF PLATEAU STATE (2012) LPELR – 9730 (SC) 62 B – C. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
POWER TO MAKE AND AMEND LAWS
This misdirection became obvious when the lower Court went further to hold that the power belonged to the Sokoto State House of Assembly. In my view, the power to modify inconsistent provisions of existing laws, under the 1999 Constitution is a novelty and it is vested on the executive arm of government represented by the President of the Federal Republic of Nigeria, with respect to Federal Legislations and on the State Governors with respect to States laws. On the other hand, the power to make new laws or amend existing laws belong to the National Assembly of the Federal Republic of Nigeria or respective States House of Assembly as the case may be. SeeATT. GEN. OF ABIA STATE V. ATT. GEN. OF THE FEDERATION (2003) LPELR – 610 (SC) per Uwais, CJN at 33 – 34 E – A, where the word modification as defined by the Constitution was amplified and upheld. See also ATT. GEN. OGUN STATE V. ATT. GEN. FEDERATION (1982) LPELR 11 (SC) where appropriate authority as contemplated by the Constitution was expounded and pronounced. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
WHETHER OR NOT A COURT OF LAW CAN MAKE DECISION BASE ON SPECULATIONS
A Court of law is not allowed to act on mere instinct or speculation but only on the evidence before it. See SEISMOGRAPH SERVICES NIG. LTD. V. OGBEN (1979) 4 SC 101. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DUTY OF COURT ON EVALUATION OF EVIDENCE
It is part of the exclusive duties of a trial Court to evaluate all the relevant credible evidence adduced before it. This evaluation involves a belief of the evidence of one party and disbelief of the other, or a reasoned preference of one version to the other. See GANIYU OBATILA V. Chief WILKEY (2007) LPELR – 4187 (CA). ALI ABUBAKAR BABANDI GUMEL, J.C.A.
DUTY OF THE COURT WHERE A PROVISION OF THE CONSTITUTION IS CLEAR
The settled position of the law is that where a provision of the Constitution is clear and unambiguous it is the duty of the Court to give such a provision its simple grammatical meaning. See DAPIANLONG & ORS vs. JOSHUA DARIYE & ANOR (2007) LPELR-928 SC. see also the case of FAWEHINMI vs. IGP. (2002) 5SC (PT. 1) 63 and a host of other cases decided in that light. FREDERICK OZIAKPONO OHO, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria delivered on 30th May, 2018 in Suit NICN/KN/54/2016, per Damulak, J
In a complaint dated and filed on 25th October, 2016, the Respondent, as the Claimant before the National Industrial Court of Nigeria, Kano Division (lower Court) sought for the following main and alternative reliefs against the Appellants, as the Defendants. They are:
On 30th June, 2016 having attained the mandatory statutory retirement age of 35 years of Service.
i. A declaration that the retirement date of the claimant/respondent from the office of the Auditor General of Sokoto State is the date of his attainment of the retirement age of sixty years which is the 10th day of October, 2024;
ii. A declaration that the claimant/respondent removal from office of the Auditor General 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 of no effect whosoever.
iii. An order setting aside the letter for notification of retirement dated 18th August, 2016 served to claimant/respondent as null and void and unconstitutional and of no effect.
iv. An order reinstating the claimant/respondent to his office and for payment of all his salaries, allowances and other entitlements from the date of his purported unlawful retirement/removal until the date of his retirement;
v. An order directing the respondents/appellants to pay the claimant/respondent the legal fees, cost and expenses prosecution this suit
OR THE ALTERNATIVE
vi. An order for the payment of the claimant/respondent’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/respondent’s term in the office as Auditor General of the respondent/appellant 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/respondent;
viii. Exemplary damages in the sum of N200,000,000.00
ix. An order directing the respondents/appellants to pay the claimant/respondent the legal fees, cost and expenses of prosecuting this suit.”
The claim is supported by a 27-paragraph statement of facts as well as the statements on oath of the Claimant/Respondent and his other witness together with other front-loaded processes, such as lists of documents to be relied on at the trial of the action.
The Appellants herein, as the Respondents at the lower Court entered appearance and filed a notice of preliminary objection challenging the locus standi of the Claimant/Respondent and the competence and jurisdiction of the lower Court to entertain the suit, etc. Issues were duly joined by the parties on the notice of preliminary objection. To also, further join issues with the Claimant/Respondent, the Appellants/Respondents filed a statement of defence dated 12th January, 2018 but filed on 15th January, 2018 sequel to an order for extension of time within which to do so. In paragraph 23 of the statement of defence, the Appellants/Respondents averred that the suit of the Claimant/Respondent was wholly incompetent, frivolous, fraudulent, lacking in substance and merit as well as being an abuse of process. The Claimant/Respondent further joined issues with the Appellants in a reply to the statement of defence.
Issues having ben duly joined, the matter proceeded to trial where the Respondent gave evidence and tendered a number of copious documents and also relied on the evidence of another witness (CW2). On behalf of the Appellants/Respondents, DW1 testified as the defence witness. Some documents were also tendered and admitted in evidence through DW1. All the witnesses were duly cross examined after they adopted, explained and relied on their frontloaded witness statements on oath.
At the end of the evidence of witnesses to the parties, the lower Court ordered respective learned counsel to file and exchange written addresses. Learned counsel obliged accordingly. The written addresses were adopted and the matter was adjourned for judgment.
Not much was heard any more about the notice of preliminary objection after learned counsel to the Claimant/Respondent mentioned and drew the attention of the Court to it during the proceedings of 19th October, 2017, as shown at page 431 of the record of appeal. In its judgment the lower Court decided in favour of the Claimant/Respondent and proceeded to grant his main reliefs in terms.
The Appellants were dissatisfied with the judgment and appealed to this Court in a notice of appeal containing 14 very copious grounds of appeal.
To argue the appeal learned counsel Mr. Sulaiman Usman SAN, Honourable Attorney General and Commissioner for Justice, Sokoto State, filed a brief of argument on 17th March, 2020 on behalf of the Appellants. On behalf of the Respondent, learned counsel Mr. N. A. Aliyu filed a brief of argument on 14th April, 2020. At the hearing of the Appeal before us on 22nd June, 2020 respective learned counsel to the parties identified, adopted and relied on their filed briefs of argument. While the learned SAN Mr. Usman for the Appellants, leading some junior Counsel urged on the Court to allow the appeal and set aside the judgment of the lower Court, learned counsel Mr. N. A. Aliyu, leading Mr. Tahir Bello, urged on the Court to dismiss the appeal and affirm the judgment of the lower Court.
For the determination of this appeal learned counsel Mr. Usman SAN, Honourable Attorney General of Sokoto State, formulated 8 eight issues from the 14 grounds of appeal. They are:
“Issue One: Whether the trial Court has properly appraised and evaluated the evidence adduced at the trial and the judgment is not against the weight of evidence. (Distilled from Ground 1 of the Notice of Appeal).
Issue Two: Whether in all the circumstances of this case, the learned trial Judge was right in law when he held that retiring age of an Auditor General of a State to be prescribed by law pursuant to Section 127 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended is a reference to biological age only and does not admits years of service as the case may be. (Distilled from Ground 2, 5, 6 and 11)
Issue three: Whether the trial Judge was right in law when he admitted Exhibits C20 and C27 despite the fact that the Claimant/Respondent failed to complied with the provision of Section 84 of the Evidence Act 2011. (Distilled from Ground 4 of the Notice of Appeal)
Issue four: Whether the Sokoto State Public Service Rule 2001 are made pursuant to and/or in contemplation of the provision of Section 127 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and therefore applicable to the office of the General of the State (Distilled from Ground Seven (7) of the Notice of Appeal).
Issue five: Whether the Sokoto State Contributory Pension Scheme Law, 2007 is contrary to the provision of Section 127 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and therefore inapplicable in the determination of the retirement age of the Auditor General of the State as (Distilled from Ground Eight (8) of the Notice of Appeal).
Issue six: Whether the Audit Law 1959 Cap. 11 Laws of Sokoto State 1996 can be relied upon to the exclusion of its amendment and modifications in the determination of the retirement age of the Auditor General of the State and Director of Audit can be read as Auditor General before the enactment of Constitution of the Federal Republic of Nigeria, 199 (Distilled from Ground 9 of the Notice of Appeal)
Issue seven: Whether the Modification of Laws (Sokoto State) Order, 1999 was in accordance with the provision of Section 315 of the Constitution of Federal Republic of Nigeria (as amended) and therefore valid (Distilled from ground 10 and 13 of the Notice of Appeal).
Issue eight: Whether the Respondent can be retired as the Auditor General of Sokoto State upon attainment of mandatory 35 years of Service in public service of Sokoto State (Distilled from Ground 12 of the Notice of Appeal).
On behalf of the Respondent learned counsel narrowed the issues for determination to two. He formulated them thus:
“Issue one: Whether the Learned Trial Judge was right in holding that Exhibits YYN5 and YYN6 are admissible documentary evidence in law and whether the learned Trial Judge did not evaluate the evidence adduced by parties before entering the judgment in favour of the Respondent based on the preponderance of evidence (Grounds 1 and 4)
Issue two: Whether the Learned Trial Judge was right in setting aside the retirement of the Respondent as unconstitutional and contrary to the Sokoto State Audit Law, 1959, being the applicable law in the appointment and retirement of the Respondent but not any other extraneous and inferior Rule or Law. (Grounds 2, 5, 6, 7, 8, 9, 10, 11, 12 and 13)”
Before resolving the issues for determination in this appeal, I believe it is appropriate to highlight and underscore the factual foundation of the action itself. The Claimant/Respondent was born on 18th October, 1964. He was employed by the then Sokoto Government Civil Service as a Clerical Assistant on 1st July, 1971. He rose through the ranks and occupied many civil service positions. He also, during his years of service acquired and obtained a number of academic and professional qualifications. On 4th February, 2013, the Respondent was appointed the Auditor General of Sokoto State, with effect from 2nd February, 2013. By a letter of notification of retirement dated 18th August, 2016, but with effect from 30th June, 2016, the Appellants retired the Respondent from service. The Appellants maintain that the Respondent was due for retirement from service after 35 years of pensionable service, i.e. from 1st July, 1971 to 30th June, 2016, while the Respondent maintain that under what he claimed to be the appropriate Law, he could only be retired when he attained the age of 60 years, i.e. 18th October, 2024.
I wish to comment a little bit about the issues for determination in this appeal. While the Appellants formulated and argued 8 issues for determination, the Respondent narrowed it down to two issues as reported above. Issues 1 and 3 in the Appellants’ brief were respectively formulated out of grounds 1 and 4 of the grounds of appeal while the first issue for determination by the Respondent was formulated out of grounds 1 and 4 of the grounds of appeal. Therefore, for convenience, I will treat the 1st and 3rd issues for determination of the Appellants to be consolidated and subsumed as a single issue as issue one in the Respondent’s brief of argument and allow it to be determined after the determination of the remaining 6 issues formulated by the Appellants because the grounds of appeal out of which these 6 issues were founded appear to have been covered by the 2nd issue for determination formulated on behalf of the Respondent.
The 2nd issue of the Appellants is: “Whether in all the circumstances of this case, the learned trial judge was right in law when he held that retiring age of an Auditor General of a State to be prescribed by law pursuant to Section 127 (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended is a reference to biological age only and does not admit years of service as the case may be.” In arguing this issue, the learned SAN and Honourable Attorney General Mr. Usman on behalf of the Appellants began by referring to the pleadings on record to point out that the Respondent had been in the service of the 1st Appellant for 35 years of active service. The learned SAN added that 35 years of service is one of the two mandatory alternatives envisaged by the law for the Respondent to retire and exit from the Sokoto State civil service. According to Mr. Usman SAN, the lower Court fell into error when it held that retiring age prescribed by law under Section 127 (2) of the 1999 Constitution, as amended is a reference to biological age and not years of service.
Against the backdrop of the foregoing, learned counsel Mr. Usman SAN submitted that the lower Court embarked on a voyage of discovery and imported into Section 127 (2) (supra) what is not in it. Mr. Usman SAN added further that it was also erroneous for the lower Court to interprete Section 127 (2) in the letters and spirit of Section 291 and Section 292 of the Constitution, as amended. Also, it was wrong to hold that any law envisaged under Section 127 (2) which provides for years of service as a criterion for retirement is inconsistent with that Section and therefore null and void to the extent of that inconsistency.
After disagreeing with the key findings of the lower Court that led to this appeal, learned Senior Counsel Mr. Usman, submitted that by virtue of Section 127 (2), the retirement age of the Auditor – General of a State was not expressly stated but left to be prescribed by a law to be made by a State House of Assembly. Sequel to this admission the learned SAN argued that Section 127 (2) cannot be interpreted in isolation of a law that prescribed the retirement age and/or retiring age of the Auditor – General of the State. According to Mr. Usman SAN, the literal meaning of the word “prescribe”, means to state authoritatively or as a rule on how an action or procedure will be carried out or put into effect. He added further that it is the law of the State that will prescribe what the retirement age of the Auditor – General because the provisions of the Constitution did not cover the field in that regard. The learned SAN then re – emphasised that to hold that the retiring age of the Auditor General is a reference to biological age amounted to putting into the provisions of the Constitution what is not there. He then explained that the function of a Court of law is Jus decire non Jus dare i.e. to declare the law and not to make law.
While relying on some local and foreign decisions Mr. Usman SAN identified two well known cannons for the interpretation of the Constitution. He pointed them out to be the generous approach and the liberal approach. In the interpretation of the Constitution of Bermuda in the case of MINISTER OF HOME AFFAIRS V. FISHER (1980) AC 319 at 329, Lord Wilberforce adopted the generous approach as an interpretative stance, so too Lord Diplock in ATTORNEY GENERAL V. MOMODU JOBE (1984) AC 689 in interpreting the Constitution of Gambia. Mr. Usman SAN also added the case of ATTORNEY GENERAL V. WHITEMAN (1991) 2 WLR 1200 at 1204 where Lord Keith reiterated the generous rule of interpretation of a Constitution involves avoiding a narrow and legalistic approach in favour of a broad, liberal and purposive interpretation with a view to giving effect to its spirit. While starting with the case of NAFIU RABIU V. STATE (1980) 8 – 11 SC 130 per Udo Udoma J.S.C. at 148 – 149, Mr. Usman SAN, submitted that this case amongst many others emphasised the use of the liberal approach in the interpretation of the provisions of Nigerian Constitutions.
In laying a further foundation and support for the liberal and generous approach in the interpretation of the Nigerian Constitution, the learned SAN Mr. Usman relied on the statement of the Supreme Court by Fatayi – Williams CJN in ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 NCLR 358 at 374, that the only guide and the only course which can produce stability in Constitutional Law is to read the language of the Constitution itself, no doubt generously and not pedantically but as a whole. According to learned counsel these positions of the Supreme Court have been consistently followed and affirmed in so many decisions. He relied on the cases of OJUKWU V. OBASANJO (2004) 40 WRN 72, ATT. GEN. LAGOS STATE V. ATT. GEN. FEDERATION (2005) 2 WRN 1, ACTION CONGRESS V. INEC (2007) 12 NWLR (PT. 1048) 222 at 259 – 260, BUHARI & ANOR V. OBASANJO & ORS (2005) 13 NWLR (PT. 941) 1 etc.
Against the above, the learned SAN Mr. Usman reiterated that since Section 127 (2) did not prescribe the retirement age of the Auditor General but left it to be prescribed by a law, it cannot be interpreted in isolation of the law that prescribed the retirement or retiring age of the Auditor General. He added that Section 127 (2) did not in any form or manner delimit or define the retiring age whose attainment must crystallize for the Auditor General to retire from office, it was therefore wrong and erroneous for the lower Court to import the expression “biological age” for the purpose of determining the retirement age of the Auditor General. He concluded and submitted that the retirement age of the Respondent was left for the State Legislature to decide so. Section 127 (2), ought to be construed in the light of all the extant laws of Sokoto State. He urged on the Court to so hold and resolve this issue against the Respondent in favour of the Appellants.
In his response, learned counsel Mr. Aliyu for the Respondent began by explaining that it was not in dispute that the appointment of the Respondent by the 1st Appellant was made pursuant to and in accordance with the 1999 Constitution, as amended. Sequel to this, Mr. Aliyu pointed out that the removal of the Respondent must also be effected as set out in Sections 126 and 127 thereof. According to learned counsel Mr. Aliyu the only real difference between the Respondent and the Appellants is which law should apply in determining the retirement age of the Auditor General of the State.
Against this foundation, learned counsel on behalf of the Respondent maintained that the relevant or prescribed law envisaged and contemplated under Section 127 (2) is the Sokoto State Audit Law 1959 as saved and incorporated into the laws of Sokoto State, 1996, being also an existing Law by Virtue of Section 315 of the 1999 Constitution, as amended. Learned counsel added further that the Audit Law was accordingly brought into force by virtue of Section 9 (2) of the Revised Laws of Sokoto State. Learned counsel therefore argued and maintained that the 1999 modification of the 1996 Audit Law was ultra – vires the power of the Governor of Sokoto and thereby invalid.
After reproducing and focusing on the full text of the provisions of Section 126 and 127 of the 1999 Constitution, as amended, Mr. Aliyu of counsel submitted that the provisions are very clear as to how an Auditor General should be appointed and removed from office and in the case of the Respondent Section 127 has stipulated the condition upon which he could legally be removed from office. According to Mr. Aliyu, the removal of the Respondent must be according to the Constitution or the relevant law which stipulates 60 years of age as the relevant and applicable age for retirement. Learned counsel perused through the records and observed that the Respondent was retired from service by the 1st Appellant when he was 52 years, purportedly pursuant to the Sokoto State Public Service Rules which stipulates 60 years of age or 35 years of service, whichever comes earlier.
In the opinion of learned counsel, the relevant law prescribed and envisaged by Section 127 (2) is the Audit Law of Sokoto State. Mr Aliyu, of counsel referred to Section 4 of the Audit Law and submitted that the Respondent can only validly be retired from service on the attainment of the age of 60 years and not according to number of years of service. He urged on the Court to do a community reading of Section 127 (2) with Section 4 of the Audit Law.
While relying on the case of DAPIALONG & ORS V. DARIYE & ANOR (2007) LPELR – 928 (SC) in which the earlier decision in FAWEHINMI V. IGP (2002) 5 SC (PT. 1) 63 was recalled and applied, it was held that the proper approach to the interpretation of clear words of a statute is to follow them in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning. Against the backdrop of this decision, Mr. Aliyu, of counsel submitted that the wordings of Section 127 (2) are plain and should be given their natural grammatical meaning. After an analysis of the provisions of Section 127 (2) learned counsel reproduced the provisions of Section 4 of the Audit Law CAP 11 Laws of Sokoto State 1996 and submitted that it is the relevant provision contemplated Under Section 127 (2). He also referred to the First Schedule to the interpretation part of the Sokoto State Laws 1996 and pointed out that the office of the Director of Audit under Section 4 (supra) is now called Auditor – General. In another strong opinion, learned counsel maintained that Sokoto State public officers could retire from office if they served for 35 years or attained the age of 60 years, whichever is earlier, while another alternative situation arises when officers could retire by attaining retirement age, notwithstanding that they served for more than 35 years in public office.
In his attempt to give substance to his earlier explanations and submissions, Mr. Aliyu, of counsel suggested that public officers who must retire or vacate office after 35 years of service and having attained 60 years of age, whichever comes first, are the public officers subject to the application of the Public Service Rules or Civil Service Rules. He cited and relied on the Supreme Court case of COMPTROLLER GENERAL OF CUSTOMS & 7 ORS V. A. B. GUSAU (2017) LPELR – 42081 (SC). Added to this, according to learned counsel, by its paragraph 01001, the Sokoto State Public Service Rules do not apply to the Respondent. In order not to apply cross – over into the arguments and submissions of the Respondent which tend to overlap with those of issues 4, 5, 6 7 and 8 of the Appellants I wish to drop an anchor here and pause a little.
In resolving this issue, it is important to bear in mind that all the key and material facts that are at the heart of the matter are not largely in dispute. By way of an elucidation, it is noteworthy that the date of birth of the Respondent, his date of assumption of office as a Clerical Assistant in the Sokoto State Civil Service in 1971, his appointment as Auditor General and the date of the appointment as well as the date of his purported retirement are well established and admitted facts. Therefore, this matter is largely not anchored on issues of fact. What is in contention and begs for an answer is whether the prescribed law envisaged and contemplated under Section 127 (2) of the 1999 Constitution is the Audit Law of Sokoto State or otherwise.
Against the backdrop of this, it is necessary to read and copy into this judgment the provisions of Section 127 (2) of the 1999 Constitution, as amended; Section 4 of the Audit Law of Sokoto State, 1996; Section 2 of the Sokoto State Contributory Pension Scheme Law, 2007, as well as paragraphs 01001, 02807 and 02809 of the Sokoto State Public Service Rules.
Section 127 “(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.”
01001 – it shall be the duty of every officer to acquaint himself with the Public Service Rules other regulations and extant circulars. 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
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 Chairman and members of the following executive 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 Constitutional of the Federal Republic of Nigeria are concerned, these Rules apply only to the extent that they are not inconsistent with the provisions of Constitution of the Federal Republic of Nigeria in so far as their conditions of service and any other law applicable to these officers are concerned.
02807: – The grant of pensions and gratuities to holders of pensionable posts in the State Public Service is governed by the Pensions Act No. 102 of 1979, and current circulars.
02809: – The compulsory 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.”
It is correct as decided by the lower Court that the Public Service Rules of Sokoto State are not applicable to the office of the Auditor General of the State. Since part of the claims of the Respondent at the trial involve diverse reliefs, it is of great significance that the prescribed law governing his retirement must be ascertained because the provisions of Section 127 (2) cannot be read in isolation.
The case of the Respondent is not the same as that of Judges and Justices under Sections 291 (1) and (2) of the 1999 Constitution or some categories of other government employees such as University Lecturers as provided by the University (Miscellaneous Provisions) Act, 2012, as amended. The retirement of this category of staff is hinged and tied up to biological age to the total exclusion of any other criterion, such as number of years of service. Therefore, it was wrong for the lower Court to hold that the retirement of the Respondent is exclusively with reference to a biological age in the absence of a clear stipulation in Section 127 (2)like the one in Section 291.
It is agreed by the parties and Counsel that the reference to Director of Audit under Section 4 of the Audit Law is a reference to the Auditor General of the State. A simple perusal of the Audit Law of Sokoto State shows that it does not make any reference to pension rights. None of its 12 Sections makes any reference to the Pension rights of the Director of Audit and where the context admits, the Auditor General. It is noteworthy that paragraph 02807 of the Sokoto State Public Service Rules provides for pension rights as follows;
02807: – “The grant of pensions and gratuities to holders of pensionable posts in the State Public Service is governed by the Pensions Act No. 102 of 1979, and current circulars.”
Further to this paragraph, other paragraphs of the Rules such as 02808 and 02809 make other stipulations with respect to some of the procedural steps to be taken by a retiring or retired public servant to claim his terminal benefits. Of great interest is that paragraph 02809 is very emphatic when it provided thus: “The compulsory retirement age of 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 Appellants have consistently maintained that the prescribed law under Section 127 (2) of the Sokoto State Contributory Pension Scheme Law, 2007. It may be therefore placed here for a further consideration, the provision of Sections 3 (1), (2), 4 (c) and 5 (1), (2) and (3) of the Contributory Pension Scheme Law of Sokoto State. Section 3 (1) provides:
“3. (1) There is hereby established for every employment in the Public Service of the State, a Contributory Pension Scheme (in this Law referred to as the Scheme) for the payment of retirement benefits of employees to whom the Scheme applies under this Law.
(2) Subject to Section 5 of this Law, the Scheme shall apply to all employees in the Public service of the State.
4. The objectives of the Scheme shall be to:
(c) implement a uniform set of rules. regulations and standards as may be prescribed by the Commission. for the administration and payment of retirement benefits in the public Service of the State.
5. (1) Notwithstanding the provisions of sub-section (2) of Section 3 of this Law, any employee who at the commencement of this Law is entitled to retirement benefits but has one (I) year or less to retire shall be exempted from this scheme.
(2) The categories of persons mentioned in Section 291 of the Constitution of the Federal Republic of Nigeria, 1999, shall be exempted from the scheme.
(3) Any person who falls within the provisions of subsection 1 and 2 of this Section shall continue to derive retirement benefits under the existing Pay-As-You-Go Pension Scheme of the Public Service of the State as amplified in the First Schedule of the Act.”
In its interpretation Section (Section 2) the Contributory Pension Scheme Law of Sokoto State (Pension Scheme Law) makes abundant and generous provisions when it incorporates the Pension Reform Act, 2004 to replace the Pensions Act No. 102 of 1979 as provided under paragraph 02807 of the Sokoto State Public Service Rules (Public Service Rules) as well as the meaning of an employee to mean any person employed in the Public Service of the State as defined under Section 318 of the 1999 Constitution, as amended. It is also re-emphasises the stipulation in paragraph 02809 of the Public Service Rules that retirement age means 60 years of age or 35 years of service, whichever comes first.
Upon the unanimity in the submissions of respective learned counsel that Section 127 (2) of the 1999 Constitution, as amended cannot be read and interpreted in isolation of the relevant and applicable prescribed law, the lower Court so found and decided. Therefore, the submissions of counsel and the finding of the lower Court in that regard cannot be faulted. The earlier finding that by virtue of Paragraph 01001, the Public Service Rules do not apply to the employment of the Respondent was also well made, irrespective of the vehement objection of the Appellants.
Since the decision in the old case ofMAIZABO V. SOKOTO N. A. (1957) 2 FSC 13, (1957) SCLR 142, the Courts of this Country have consistently been guided that in the interpretation or construing the provisions of a statute, it is important to have in mind the clearly defined objectives of such a statute. It is against this posture of consistency that the Supreme Court held in the case of VICTOR ADEGOKE ADEWUMI & ANOR. V. ATT. GEN. OF EKITI STATE (2002) 1 SC 47 that when a Court is faced with construction, interpretation and application of a statutory provision to the facts ascertained by it in a case, it must read the statute to ascertain whether and how its meaning relates to the case in controversy, or if the language. i.e. words or meaning ascertained from that language resolve the controversy, the inquiry terminates there; but if the language or meaning does not resolve the controversy then the Court must adjust and apply an appropriate judicial rule to decide and resolve the issue in controversy. Earlier in the case of MOBIL OIL NIG. LTD V. FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 53 our apex Court while relying on a number of its previous decisions remarked that the general rule for construing a statute is where its words are clear, the Court must give effect to their literal meaning. And it is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within its body or external aid from statutes that are in pari materia in order to resolve the ambiguity or avoid doing injustice.
Also, since the decision in AWOLOWO V. SHAGARI (1979) 6 – 9 SC 51 at 97, it has been settled and well established that the Court, in interpreting the provisions of a Statute or Constitution, must read together related provisions of the Constitution in order to discover the meaning of the provisions. The Court must not interpret related provisions of a Statute or Constitution in isolation and then destroy in the process the true meaning and effect of particular provisions. This was cited and applied by Oguntade, J.S.C. in AMAECHI V. INEC & ORS. (2008) 2 FWLR (PT. 414) 1 1443.
In one of the most referred cases in our Courts on the interpretation and application of the Constitution, NAFIU RABIU V. STATE (1980) LPELR – 2936 (SC), the Supreme Court per Obaseki J.S.C. focused on the subject and observed that a Constitution is a legal instrument giving rise among other things to individual rights capable of enforcement in a Court of Law. Against the backdrop of this definition, His Lordship admonished that respect must be paid to the language which has been used and to our laws, traditions and usages which have given meaning to that language. The immutable words of Udo Udoma, J.S.C. in the case of RABIU V. STATE (supra) have remained a shining light in our judicial firmament. His Lordship explained and adopted the generous, engaging and robust approach to Constitutional interpretation which involves liberalism, purposiveness and avoidance of legalistic and pedantic approach with the overall objective of giving effect to the real intendment and the spirit of the Constitution. See also Adekeye, J.S.C. inATT. GEN. OF NASSARAWA STATE V. ATT. GEN OF PLATEAU STATE (2012) LPELR – 9730 (SC) 62 B – C.
With respect to the facts and circumstances in this appeal, I wish to reiterate that the determination of whether, with the coming into effect of the 1999 Constitution, the Audit Law 1996 was an existing law is of great significance. It was against this imperative that the lower Court held that: – “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.” (See lines 4 – 10 at page 485 of the record of appeal).
The above finding of the lower Court was made in the context of the arguments and submissions of the learned SAN for the Appellants that the Audit Law was no longer part of the applicable laws of Sokoto State because of the provisions of Schedule Two of Sokoto State Legal Notice No. 1 of 1999 – Constitution of the Federal Republic of Nigeria, 1999. As significant as this determination was, it was not in any of the principal reliefs of the Claimant/Respondent. It was also not an issue that the parties had fully joined issues at the trial. The jury is out there if the above exercise by the lower Court with respect of the Audit Law, to the extent it went, was clothed with the necessary vires, competence and jurisdiction. Be it as it may, whether it was the Governor of Sokoto State that was in the competent and valid position to bring an inconsistent law to be consistent with the 1999 Constitution as provided under Section 315 of the Constitution and if it was whether that power was properly exercised pursuant to the Sokoto State Legal Notice No. 1 of 1999, or whether it is the Sokoto State House of Assembly only that can do that pursuant to its general power to make laws for Sokoto State still begs the question – is the Audit Law a valid and applicable law of Sokoto State?
In its attempt to decide on the applicability or otherwise of the Audit Law, the lower Court, in my view misdirected itself when it held that the Governor of Sokoto State cannot modify its inconsistent provisions to fall fully in line with the relevant provisions of the Constitution such as Sections 126 and 127 thereof as provided under Section 315. This misdirection became obvious when the lower Court went further to hold that the power belonged to the Sokoto State House of Assembly. In my view, the power to modify inconsistent provisions of existing laws, under the 1999 Constitution is a novelty and it is vested on the executive arm of government represented by the President of the Federal Republic of Nigeria, with respect to Federal Legislations and on the State Governors with respect to States laws. On the other hand, the power to make new laws or amend existing laws belong to the National Assembly of the Federal Republic of Nigeria or respective States House of Assembly as the case may be. SeeATT. GEN. OF ABIA STATE V. ATT. GEN. OF THE FEDERATION (2003) LPELR – 610 (SC) per Uwais, CJN at 33 – 34 E – A, where the word modification as defined by the Constitution was amplified and upheld. See also ATT. GEN. OGUN STATE V. ATT. GEN. FEDERATION (1982) LPELR 11 (SC) where appropriate authority as contemplated by the Constitution was expounded and pronounced.
It does not admit of any disputations that certain aspects of the Audit Law of Sokoto State are not fully consistent with the provisions of the 1999 Constitution. For example, the reference to the office of the Auditor General under Sections 126 and 127 of the Constitution. I therefore agree with the learned SAN for the Appellants in his arguments on issue seven for determination in this appeal that a law cannot be challenged and set aside in an action seeking for relief under the same law. I hold the view, as suggested by Mr. Usman SAN, that the Constitutional validity of a law can only be challenged in an action solely and principally instituted for that purpose. Therefore, the declaratory relief granted by the lower Court at page 485 of the record as part of its judgment must remain of no moment. To the extent that the validity or otherwise of the Audit Law 1996 has not been the subject of a formal adjudication and pronounced upon by a Court of competent jurisdiction, the position must remain as contained in the Sokoto State Legal Notice NO. 1 of 1999. By virtue of this Legal Notice, the Audit Law of Sokoto State was not a valid and existing law at the date when the Respondent commenced this action and therefore without a formal action setting aside that Legal Notice as it affected the Audit Law, it cannot be the prescribed law envisaged and contemplated under Section 127 (2) (supra).
A Court of law is not allowed to act on mere instinct or speculation but only on the evidence before it. See SEISMOGRAPH SERVICES NIG. LTD. V. OGBEN (1979) 4 SC 101.
It is part of the exclusive duties of a trial Court to evaluate all the relevant credible evidence adduced before it. This evaluation involves a belief of the evidence of one party and disbelief of the other, or a reasoned preference of one version to the other. See GANIYU OBATILA V. Chief WILKEY (2007) LPELR – 4187 (CA).
As part of the pleadings, paragraph 4 of the reply to the statement of defence, the Respondent averred thus: – “In response to paragraph 18 and 19 of the statement of Defence, it is hereby avers that the Claimant’s computation of benefit for retirement is clear and not vague, it was computed based on the computation. The Sokoto State Pension Office issued to the immediate past Auditor General, Yusuf Yahaya Nawawi which also applies to the Claimant. (The Respondents are put to the strictest proof to establish to the contrary). The said document issued by the State Pension Office dated 23/11/2012 is hereby pleaded and we shall rely on it at the trial.”
It is also part of the trial that Exhibits SYN 2, YYN 4, YYN 5 and YYN 6 were tendered and admitted in evidence. The letter of appointment of an employee is the bedrock of his contract of employment. All the terms and conditions of the contract of employment must be founded within the letter of employment and, as it often happens, any documents that it may have incorporated to be part of it. According to the evidence of CW2, the contract of employment of the Respondent, apart from what was fully set out on the face of Exhibit. YYN 4, is subject to the contents of Circular No. ED. 4/1992 of 26th June, 1992, as applicable to the office of the Auditor General of Sokoto State. In a civil trial the claimant must rely on the strength of his case not on the weakness of the defence against it. In the circumstance of the instant appeal, the full terms of the contract of service of the Respondent were not placed before the lower Court. Because the Public Service Rules, as detailed and comprehensive as they are, do not apply to the Respondent, it was necessary and incumbent on the Claimant/Respondent to place all the relevant and applicable terms of his contract of employment before the Court. In the absence of circular No. ED. 4/1992 of 26ht June, 1992, the full terms and conditions of the contract of service of the Respondent cannot be properly determined but left for speculation.
Exhibit YYN6 is the computation of the terminal benefits of CW2. It was dated 23rd November, 2012. There was evidence before the lower Court that CW2 was penciled and earmarked for retirement after 35 years of service and before he was 60 years old. That looming retirement was subsequently aborted for reasons the Appellants did not make available to the Court. It is however very curious to see on Exhibit YYN6 that CW2 was retired after 35 years of service, though the letter was issued when he was 60 years old, and also having served for more than 35 years of pensionable service. Added to this, the Respondent did not adduce any credible evidence on the rules or regulations governing the issuance of Exhibits YYN5 and YYN6. Exhibit YYN6 is not very explicit on what was the real criterion for the retirement of CW2. In my view it is rather ambivalent between 35 years of service and 60 years of age.
As pointed out earlier the 1999 Constitution, as amended has not made a specific provision for the age of retirement of an Auditor General like it did with respect to the retirement of judges of the superior Courts. Since the Public Service Rules, though made pursuant to powers conferred by Section 197 (1) and (2) of the 1999 Constitution, as amended, do not apply to the office of Auditor General, it is wrong, in the absence of a clear Constitutional mandate such as Sections 291 and 292, to hold that the retirement of the Respondent is solely with reference to biological age. The non-production of all the relevant government circulars governing the contract of service of the Respondent did not help matters. A retirement from government service generally does not bring the relationship of the employer and employee to an end because of the legitimate expectation of the employee to be paid terminal benefits and pension for life by the employer. The Court must take judicial notice of this very notorious fact and also that payment of retirement benefits involves computation of figures in monetary terms. With respect to the facts and circumstances herein, the Respondent has not pleaded or led evidence to show under what law of Sokoto State or any other law duly made pursuant to which his retirement benefits were to be paid or under which the terminal benefits of CW2 were computed and are being paid.
The Audit Law, even if it is valid and subsisting law, he was claiming to be the prescribed law under Section 127 (2) of the Constitution does not make any provisions at all in that regard. The retirement of the Respondent and CW2 took effect when the Contributory Pension Scheme Law, 2007 and the Pension Reform Act 2004 were in force as the applicable laws to all the employees of Sokoto State. Section 3 (2) of the Pension Scheme Law 2007 makes it applicable to ALL employees of the state, except those specifically excluded by Section 5 thereof and the Respondent does not appear to be among those specifically excluded.
The Audit Law is a specific subject matter law. It deals with its specialty and does not fully incorporate any other public service issues such as the perquisites of office of the Auditor General. Even though in its Section 3, the Audit Law sought to provide in specific terms, the salary and allowances of the Auditor General, it failed to achieve that objective because Section 3 was shown to have been overtaken by events, as providing a static or fixed salary to the Auditor General was found to be against the general civil service norm of periodic review of salaries and allowances. A careful reading and perusal of the Pension Scheme Law shows that it deals, with its own specialty too i.e. contributory pension and matters incidental and connected there with. In its Section 31 it provides that:
31. “If any other Law relating to pensions in the State is inconsistent with this law, and that of the Act, the provisions of the Act and this Law shall prevail and that other law shall to the extent of its inconsistency be void.” The statement of the law 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 is well known and supported by a legion of local and foreign case law. It goes without saying that because the Contributory Pension Scheme Law is more robust in its contents and comprehensive in its character, it will appear to be more readily available as the prescribed law under Section 127 (2), more particularly because the Respondent deliberately withheld the evidence contained in the relevant government circulars that gave details of the terms and conditions of his contract of service.
It is part of the legitimate expectation of a public servant that upon retirement his earned terminal benefits in monetary terms be paid. In Nigerian Civil Service parlance and practice this involves payment of gratuity and monthly pension for life.
Judges and Justices of the Superior Courts are not bound by the Public Service Rules and therefore the Pension Right of Judges (Amendment) Act, 2016 provides for the retirement benefits of judges. From this perspective the Sokoto State Contributory Pension Scheme Law, 2007 appears to have some relevance. Section 2 provides that retirement age, in the context of payment of terminal benefits as a legitimate expectation, means 60 years of age or 35 years of service whichever comes first. In the absence of any clear stipulations on the pension rights of the Auditor – General of Sokoto State in the Sokoto State in any law, it will be absurd to associate and hinge the retirement of the Respondent exclusively to the Audit Law 1996. It is even more absurd that two sets of retirement ages will be applicable to a particular public servant of Sokoto State. It is for these reasons that I find and hold that the lower Court was wrong to find the Audit Law of Sokoto State 1996 to be the prescribed law under Section 127 (2) of the 1999 Constitution. The proper finding to be made in the circumstance for certainty and completeness is that the Sokoto State Contributory Pension Scheme Law 2007 is the prescribed Law envisaged by Section 127 (2) with respect to the retirement of the Respondent. This issue is resolved in favour of the Appellants.
Issue one for determination was argued at pages 6 to 11 in paragraph 4.1 of the Appellants’ brief of argument while issue three was argued in paragraph 4.3 at pages 17 to 18, the response of the Respondent appears at pages 4 to 10 of the brief of argument filed on his behalf. I have carefully considered all those arguments and submissions together with some of the decided cases cited in support thereof. I agree with the Appellants that the evaluation of some of the documentary evidence before the lower Court was a bit off hand and perfunctory which led to some of the areas of misdirections and errors as pointed above. The Respondent manifestly failed to plead and give evidence on the full terms and conditions of his employment, knowing and believing full well that the Public Service Rules of Sokoto, though vehemently opposed by the Appellants, do not apply to him by virtue of Paragraph 01001 thereof. The lower Court relied on the case of LPDC V. KALEJAIYE (2016) 6 NLWR (PT. 1508) 424 – 425 and Section 12 (2) (b) of the National Industrial Court Act 2006, to overrule the objection of the Appellants to the admissibility of Exhibits YYN5 and YYN6 in view of Section 84 (1) (2) of the Evidence Act, 2011. In my humble view the case of KALEJAIYE is totally inapplicable to the circumstances with respect to Exhibits YYN5 and YYN6. It is also not possible for Section 12 of the National Industrial Court Act to override Section 84 of the Evidence Act, 2011 because the Evidence Act is a special law that deals with the reception and any incidental matters to evidence in our Courts. Against Section 84 of the Evidence Act Section 12 of the National Industrial Court Act cannot be mandatory to supplant the former. The reasons for admitting the documents are therefore lacking in substance.
But assuming Exhibit YYN6 was admissible in the circumstance, I have already pointed out above that it does not appear to me to be supportive of the case of the Respondent. Issues 1 and 3 are therefore hereby also resolved in favour of the Appellants against the Respondent.
Having resolved issues one, two and three in favour of the Appellants and against the Respondent, issues 5 and 8 must also accordingly be so resolved and are so resolved. Issues 4, 6 and 7 have become academic. This appeal is hereby allowed. The Judgment of the National Industrial Court of Nigeria delivered on 30th May, 2018 in Suit No. NICN/KN/54/2016 is set aside. The claim in it is dismissed for being devoid of any merit. No order for costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ALI A. B. GUMEL, J.C.A. and I am in agreement with the reasoning and conclusions reached in allowing the Appel and setting aside the judgment of the Court below.
The main thrust of the current edition of the Public Service Rules, 2008 is to ensure that fundamental ethical issues in the public service in Nigeria are strictly adhered to as it is aimed at entrenching the issues of transparency, accountability, fair play, equity and justice in the administrative structure of the Public Service of Nigeria. The current Rules replaced the old Civil Service Rules and it is more general in its application to the various segments of Public Service, blurring as it were, the erstwhile dichotomy between those strictly referred to as Civil Servants on the one hand, and those referred to as Public Servants, on the other hand who are engaged by Government Agencies and parastatals. A clear example, which is often cited, is the Rule 030425 Of the Public Service Rules, which acknowledges the prohibition of private practice, but also condones the exemptions granted to Medical Practitioners and Law Lecturers in the Universities.
The question, perhaps that this situation poses here, therefore as regards the question of who can rightly by categorized a Public Servant and who is not; is that if Law Lecturers are not Public Servants, why did Rule 030425 recognise the exemption granted to them and allows them the freedom to engage in private practice? Perhaps, as a corollary here, the question to therefore pose, is whether the Auditor-General is indeed capable of being categorized as a Public Servant in contemplation of the extant Rule of the Public Service in Rule 020810 applicable to the Federal Public Service and in the case of Sokoto State, the Rule 02809 of the Sokoto State Public Service Rules, the pith and substance of which is the same as the Federal Rules.
It is important to further note, still on the question of appropriate categorization for the Auditor-General, that in making provisions for compulsory retirement on the basis of the retirement age of 60 years or 35 years pensionable service whichever comes earlier also acknowledges, the exemption granted Judicial Officers and Academic Staff of Universities and other Tertiary Institutions who retire respectively at age 65 or 70 years as the case may be. The question begging to be answered here is why is this so? The answer to this question, of course is not farfetched. The only reasonable answer here is that the Public Service Rules are meant to be of general application to all Public Servants and Officers.
In Chapter 1, Rule 010101 dealing with the scope and application of the Rules, it first provides that the Rules shall apply to all officers except where they conflict with specific terms approved by the Federal Government and written into the contract of employment or letters of appointment. Even in regards to Constitutional office holders (and they are listed therein starting from the President, Vice President, Chief Justice of Nigeria to Chairmen and members of the listed statutory bodes), the Public Service Rules, in so far as the conditions of service and any law applicable to these officers are concerned, the Rules shall apply if they are not inconsistent with the provisions of the Constitution.
The Public Service Rules, although in some respects allows public institutions governed by enabling laws to operate within those laws, the provisions on leaving service under the Public Service Rules are mandatory and sacrosanct to all and do not exempt those in Government Agencies and parastatals, let alone those in the core civil service as the Auditor-General of a State. However, under Section 8 of Chapter 2 of the Public Service Rules that Rule 020810, which provides for the tenure policy, is enacted. Rule 020810 provides as follows —
(i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.
(ii) No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.
(iii) The provision of (i) and (ii) of this Rule is without prejudice to prevailing requirements for Judicial Officers and Academic Staff of Universities and other tertiary Institutions who retire to 70 and 65 years respectively.
(iv) Provided the Officer would not have attained the retirement age of 60 years or spent 35 years of pensionable service, whichever is earlier:
(a) A Director shall compulsorily retire upon serving eight years on the post; and
(b) A permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance, and no more.
The controversy, however, which seemed to have dogged this Appeal, is whether the Appellant was right to have ordered the retirement of the Respondent upon the Respondent’s attainment of tenure of 35 years of pensionable service and not the mandatory age of sixty (60) years. In arguing this Appeal, learned Respondent’s Counsel urged this Court to hold that the first option of Section 2 of the Sokoto State Pension Law, 2007, which ordains that: “Retirement age means 60 years of age” applies to the Auditor General of Sokoto State having regards to the fact that it is consistent to Section 127(2) of the Constitution of Nigeria, 1999 as amended, while the second part of Section 2, which provides thus: “or 35 years of Service, whichever comes first as relates to the Auditor General is inconsistent with Section 127(2) of the Constitution of Nigeria, 1999 as amended and that as such it is null and void to the extent of the inconsistency.
It may at this stage, perhaps, be appropriate to clinically examine the provisions of the Sokoto State Pension Law, 2007 on the subject, alongside the provision of Section 127(2) of the Constitution, 1999 to make assurance doubly sure that the analysis this Court is about to embark upon is not off course. To this end, Section 5 (1) of the Sokoto State Pension Law provides thus: “The Director Audit, in pursuance of the provisions of Section 117 of the Constitution of 1979, shall audit and report on the public accounts of the State.”
The argument of learned Respondent’s Counsel is that Section 119 (1) and (2) of the 1979 Constitution is in pari materia with Section 127 (1) and (2) of the 1999 Constitution as amended, which provides thus:
1. “A person holding the office of the Auditor-General shall be removed from office by the Governor of the State acting on an address supported by two-thirds majority of the House of Assembly praying that he be so removed for inability to discharge the functions of his office (whether arising from infirmity of mind or body or any other cause) or for misconduct.
2. The 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.”
Arising from the foregoing, the further contention of learned Respondent’s Counsel is that the law governing the tenure and the appointment of Respondent as Sokoto State Auditor General is Section 127(1) and (2) of the Constitution of Nigeria, 1999 as amended. Perhaps, the million naira question to address here is whether the expression: “Director of Audit” used in Section 119(1) and (2) of the Constitution of Nigeria, 1979 did in fact refer exactly to the same thing as “Auditor-General”, used in the 1999 Constitution and the position held by the Respondent shortly before he was relieved of his Office? It would be recalled that learned Respondent’s Counsel made a heavy weather relying on the provision of Section 119 (1) and (2) of the Constitution of Nigeria, 1979 whose provision referred to the office of “the Director of Audit” and not the office of “Auditor-General”. Furthermore, learned Respondent’s Counsel made heavy reliance on the provisions of Section 4, 5, 8 and 12 of the Audit Law, 1959 Cap. 11 LSSN, 1996 in contending that the expression: “Director of Audit” is synonymous or exchangeable with the expression: Auditor- General” adopted by the provision of Section 127(1) and (2) of the 1999 Constitution of Nigeria.
The settled position of the law is that where a provision of the Constitution is clear and unambiguous it is the duty of the Court to give such a provision its simple grammatical meaning. See DAPIANLONG & ORS vs. JOSHUA DARIYE & ANOR (2007) LPELR-928 SC. see also the case of FAWEHINMI vs. IGP. (2002) 5SC (PT. 1) 63 and a host of other cases decided in that light. In the first place, this Court is not in agreement with the assumption of the Court below that the 1999 Constitution having settled for the expression: “Auditor-General”, that the makers of the Constitution also intended that to mean the same thing as the “Director of Audit”. To this end and as it stands in the opinion of this Court the expression: “Director of Audit” is an office unknown to the Constitution of Nigeria, 1999.
It would be recalled that when Section 2 of the Sokoto State Contributory pension Scheme Law, 2007 provided that: “Retirement age means 60 years of age or 35 years of Service, whichever comes first”, in relation to the office of the Auditor-General, it merely restated the extant provisions of the Public Service Rules dealing generally with Public Servants to whom the Office of the Auditor-General is inexorably a part. But that again, notwithstanding, and in the circumstance where it is abundantly dear that the Constitution of Nigeria, 1999 made no specific provisions for the retirement age of an Auditor-General, like it did with respect to the retirement age Of Judges of superior Courts, it would be absurd, if not completely wrong for the Court below to hold that the retirement age of Auditor General refers to his biological age, in view of the looming presence of Section 2, which provides that retirement age in the context of payment of terminal benefits means 60 years of age or 35 years of service, whichever comes first. This Court is in clear agreement with the lead judgment that in the absence of any dear stipulations on the pension rights of the Auditor General of Sokoto in the Sokoto State Audit Law, 1996.
Consequently, the Appeal has merit and it is accordingly allowed. The judgment of the National Industrial Court of Nigeria delivered on the 30th day of May, 2018 in Suit No. NICN/KN/54/2016 is hereby set aside. I abide by other consequential orders made in the leading Judgment.
ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now, the judgment just delivered by my learned brother ALI. A B. GUMEL J.C.A. I agree with his reasoning and conclusions. I have nothing to add to a well written judgment. I also allow the appeal and hereby set aside the judgment of the National Industrial Court of Nigeria delivered on 30th May, 2018 in Suit No: NICN/KN/54/2016
I abide by all the consequential orders made thereto.
Appearances:
Mr. Sulaiman Usman SAN, Honourable Attorney General and Commissioner for Justice, Sokoto State with him, Habiba A. Usman, Chief State Counsel,Hafeez S. Buhari, Chief State Counsel and S.U. Maikulla, Senior State Counsel, Sokoto State Ministry of Justice, Sokoto For Appellant(s)
Nasiru Adamu Aliyu with him, Tahir Bello For Respondent(s)