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National Industrial Court

Suleiman Sarkin Fulani Ahmad & ORS -VS- Governor of Sokoto State &

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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 THURSDAY THE 17TH DAY OF JANUARY, 2019

SUIT NO.NICN/SK/14/2018

BETWEEN

  1. SULAIMAN SARKIN FULANI    AHMADU
  2. AHMINU HALIRU DIKKO                                                                    CLAIMANTS

AND

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

SOKOTO STATE                                                                        DEFENDANTS

  1. ATTORNEY GENERAL, SOKOTO STATE

 

JUDGMENT

  1. INTRODUCTION.

This judgment borders on the question whether the compulsory retirement of the claimants by the defendants is lawful. The claimant took out an originating summons against the defendants on the 20/9/2018, accompanied by all the necessary documents as required by the Rules of this Court. The originating summons is  supported by a 39 paragraph affidavit with 23 annexure marked as EXHIBITS COMPULSORY RETIMENT A, A1,  B, C, D, E, F, F1, G, H, I, J, K, L, L1, L2, L3, L4, L5, L6, L7, L8 and M.

The claimants formulated 8 questions for determination and have prayed for 12 corresponding reliefs as follows;

  1. A DECLARATION that in the absence of any proven grounds of inefficiency or inability to discharge the functions/duties of their office or misconduct/gross misconduct the 1st and 2nd claimants are entitled to retain/remain in their appointments in the public service of Sokoto State until each has attained the mandatory retirement age of 60 years or put in 35 years of service, whichever is earlier.
  2. A DECLARATION that in the absence of any proven grounds of inefficiency or inability to discharge the functions/duties of their office or misconduct/gross misconduct the defendants have no power or right whatsoever to determine whether by compulsory retirement or dismissal the appointments of the 1st  and 2nd  Claimants in the Public Service of Sokoto State before the natural expiry of their appointments by attainment of mandatory retirement age of 60 years or service of 35 years, whichever is earlier.
  3. A DECLARATION that the purported compulsory retirement of the 1st and 2nd Claimants by the 2nd  defendant conveyed/contained in the 2nd  defendant’s letters titled “notification of Compulsory Retirement As Permanent Secretary” reference nos. HOS/PS/031/VOL.1 and HOS/PS/019/VOL.1 dated August 27, 2018 based on the whimsical, arbitrary and unjustifiable directive of the 1st defendant is in breach of the Claimants’ right under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, as affirmed in Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001, hence unconstitutional, unlawful, null, void and of no effect whatsoever.  
  4. AN ORDER setting aside the purported compulsory retirement of the 1st and 2nd Claimants conveyed/contained in the 2nd defendant’s letters of “Notification of Compulsory Retirement as Permanent Secretary” dated August 27, 2018 reference nos. HOS/PS/031/VOL.1 and HOS/PS/019/VOL.1 same being unconstitutional, unlawful, null, void and of no effect whatsoever.
  5.  A DECLARATION that the 1st and 2nd Claimants are still in the employment of the Sokoto State Government and shall remain so until their appointments are lawfully determined.
  6. A DECLARATION that the 1st  and 2nd Claimants are each entitled to all their emoluments/entitlements and other privileges of their employment, appointment or position in the Public Service of Sototo State as stipulated in the 1st defendant’s letters reference NOS.EXCO/59/VOL.IV and EXCO/59/VOL.II titled appointment letter dated 16th  March 2012 and 12th  June, 2007 respectively as well as the Sokoto State Public and Political Office Holders Emolument Law No. 2009 until their appointments are lawfully determined.
  7.  A  MANDATORY ORDER directing the defendants by themselves, their servants or agents to grant, avail and pay to the Claimants all accrued or accruing salaries/emolument/benefits from August 15, 2018 until judgment and satisfaction thereof.
  8.  A MANDATORY ORDER directing the defendants by themselves, their servants or agents to pay the sum of N15, 000,000.00 being cost which the Claimants were wrongfully constrained to incur to engage solicitors to prosecute this action.
  9. A MANDATORY ORDER directing the Defendants by themselves, their servants or agents to pay the sum of N100,000,000.00 as punitive and or exemplary damages to each of the Claimants for physical and emotional/mental trauma caused by the wrongful determination of their appointments.
  10.  AN ORDER OF INJUNCTION restraining the defendants by themselves, their servants or agents from interfering in any way or manner with the Claimants in the performance of their duties and or withholding their salaries/emoluments/entitlements until their appointments are lawfully determined.
  11.  And such further orders as this court may deem fit to make in the circumstances.
  12.  Cost of the action.
  13. FACTS OF THE CASE

The 1st claimant was born on 2/1/1965, he was employed into the Sokoto state civil service with effect from 23/7/1992 by a letter dated 27/2/1996 and was confirmed on 23/7 /1994. He rose through the ranks till he was appointed permanent secretary on 6/3/2012 via letters dated 9/3/2012 and 16/3/2012.On 15/8/2018 he heard the approval of his compulsory retirement by the 1st defendant on RIMA RADIO &TELEVISION and he was subsequently issued a letter to that effect on 28/8/2018. As at the time of his compulsory retirement, the 1st claimant was 53 years of age and had put in 26 years in the service of Sokoto state.

Similarly, The 2nd  claimant was born on 2/1/1964, he got appointed into the Sokoto  state civil service with effect from 3/10/1983 by a letter dated 29/9/1983 and was confirmed  on 3/10/ 1985 by a letter dated 31/8/1987. He rose through the ranks till he was appointed permanent secretary on 12/6/2007 via letters dated 6/6/2007 and 12/6/2007. On 15/8/2018 he heard the approval of his compulsory retirement by the 1st defendant on RIMA RADIO &TELEVISION and he was subsequently issued a letter to that effect on 28/8/2018. As at the time of his compulsory retirement, the 2nd claimant was 54 years of age and is said to have put in 34 years in the service of Sokoto state.

 

  1. CASE OF THE CLAIMANTS

In the 39 paragraph affidavit deposed to by the 1st claimant on behalf of the claimants, the depositions in a summary are to the following effect;

  1. That at all material time the 1st Claimant was and is a career civil servant employed in the Civil Service of Sokoto State and was born on 2/l/1965.
  2. That the 1st Claimant was offered a permanent and pensionable appointment as a Personnel Officer II with effect from 23/7/l992 by the Sokoto State Civil Service Commission (i.e. 2nd defendant herein) effective 23/7/1992 vide two letters reference nos. CSC/25690/20 and CSC/25690/23, both of which are dated 27/2/1996 marked as EXHIBIT COMPULSORY RETIREMENT A & A1 and confirmed by the Government of Sokoto State on 23/7 /1994, EXHIBIT COMPULSORY RETIREMENT Al refers.
  3. That as a career civil servant the terms and conditions of the 1st Claimant’s appointment was/is governed and or regulated by the Sokoto State Public Service Rules the extant one of which was revised 1st January, 2001.
  4. That by virtue of his said appointment and its confirmation, coupled with the provision of Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules, the 1st Claimant is entitled to remain in the service of Sokoto State Government, subject to satisfactory discharge of his duties/functions and good conduct until he attains the mandatory compulsory retirement age of sixty (60) years or have put in 35 years of service, whichever is earlier.
  5. In the course of time the 1st Claimant discharged his duties/functions satisfactorily and enjoyed increment of salary, was duly promoted and posted to serve the Government of Sokoto State in various capacities, including the position of Permanent Secretary in the government of Sokoto State.
  6. That the letter of the 2nd defendant titled “Notification of Appointment” reference No.SMG/N/487/VOL.1/38  dated 7th November, 2005 by which the 1st  Claimant was appointed as Acting Permanent Secretary in the service of the Government of Sokoto State is attached here and marked as EXHIBIT COMPULSORY RETIREMENT B.
  7. That the letter of the 2nd defendant titled “Notification of Appointment As Permanent Secretaries “reference No SMG/N/333/VOL.1 dated 9th March, 2012 and the 1st defendant’s letter titled “Appointment Letter” reference No. EXCO/59/VOL.IV dated 16’” March 2012 and by which the 1st Claimant was appointed as Permanent Secretary in the service of the Government of Sokoto State with effect from 6th March 2012 are attached here and marked as EXHIBITS COMPULSORY RETIREMENT F & Fl, respectively·
  8. That the 1st Claimant held the post of Permanent Secretary until 15/8/2018 when upon tuning in to the service of the Sokoto Rima Radio & Television and the 1st Claimant heard the broadcast of a press release issued by one Abubakar Shekara, Director General, Media and Public Affairs to the Governor of Sokoto State, in which the general public was informed, amongst other things, of the directive of the 1st defendant to compulsorily retire the 1st claimant and one Aminu Dikko i.e. the 2nd   claimant herein) from the public service of Sokoto State.
  9. That as Permanent Secretaries, the  Claimants are entitled as follows:
  10. i) Basic salary of Nl,347,870.00 per annum.
  11. ii) Chauffeur Driven Vehicle.

iii) And other entitlements as contained in the Sokoto State Public and Political Office Holders Emolument Law 2009.

  1. That the net monthly emolument for the  Claimants after deductions for all purposes is N316,406.00 (Three Hundred and Sixteen Thousand Naira, Four Hundred and Six Naira) only which the  claimants risk losing by the wrongful action and or decision of the defendants unless otherwise quashed or set aside by this Honourable Court.
  2. That subsequently, on or about 28/8/2018 the 1stClaimant was served with a letter reference No. HOS/PS/031/VOL.1 titled “Compulsory Retirement As Permanent Secretary’’ dated August 27, 2018 signed by one Sani Dan Illo Tsamiya, Director Administration, on behalf of the Sokoto State Civil Service Commission by which the 1st Claimant was informed that he has been compulsorily retired from the civil service or employment of the Sokoto State Government with effect from 15/8/2018. The said letter by which the 1st Claimant was so informed is attached here and marked as EXHIBIT COMPULSORY RETIREMENT G.
  3. That at the time the 1st Claimant was purportedly compulsorily retired the 1st claimant had only attained the age of 53 years having been born on 2/1/1965 and put in 26 years of meritorious service for the Government and people of Sokoto State and was hopefully and pleasantly looking forward to a decent retirement in the year 2025 or thereabout, reckoning with the 1st claimant’s age.

The case of the 1st claimant as deposed to is supported by EXHIBITS COMPULSORY RETIMENT A, A1,  B, C, D, E, F, F1,and  G.

Deposing further on behalf of the 2nd claimant, the 1st claimant deposed thus;

  1. That at all material times while the 1st Claimant was in the service of the Sokoto State Government the 1st Claimant have known one Aminu Haliru Dikko (i.e. the 2nd claimant endorsed herein) as an officer also in the civil service of Sokoto Sate Government and on several occasions met and discussed official business with him in the course of several meetings of Permanent Secretaries of the Sokoto State Government.
  2. That the 2nd Claimant is the 2nd permanent Secretary to be compulsorily retired mentioned in the Press Release issued on the directive of the 1st Defendant on August 15, 2018.
  3. That on September 6, 2018 at the office of our solicitors at No. 11. Kano Road, Sokoto at about 9.26 am, in the course of instructing solicitors in respect of our purported compulsory retirement the 1st  Claimant was informed by Aminu Haliru Dikko (i.e. 2nd claimant herein) and your 1st  claimant verily believe him as true as follows;

All the information received from the 2nd claimant, deposed to by the 1st claimant, are materially the same with those of the 1st claimant except for the differences as to their ages, year of employment, year of appointment as permanent secretary and years of service as shown in the facts of the case above. The depositions of the 1st claimant on behalf of the 2nd claimant shall therefore not be repeated herein.

The case of the 2nd claimant deposed to by the 1st claimant is supported by EXHIBITS COMPULSORY RETIMENT H, I, J, K, L, L1, L2, L3, L4, L5, L6, L7, L8 and M.

 

Learned claimants’ counsel argued questions 1 and 2 together, questions 3,4,5,6 and 7 together and question 8 alone. Submitting on questions 1 and 2 in his written address on behalf of the claimants, learned counsel contended that these issues explores the nature or tenure of the appointments of the Claimants and the grounds or circumstance that may lead to their determination before their natural expiry. Being staff or officers in the public service of Sokoto State the appointments of the Claimants are regulated by the provisions of the extant Sokoto State Public Service Rules revised to 2001.

The Sokoto State Public Service Rules 2001 are made pursuant to the provisions of section 204(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. These rules are subsidiary legislation and have the force of law. To the extent therefore that they make provisions for the appointment, promotion, discipline, determination of appointment by way of retirement or dismissal, procedures to be followed and grounds on which the appointment of a person in the civil service of the state may be determined, they must be followed. CONTROLLER OF CUSTOMS & ORS VS. GUSAU (2017) LPELR 42081 PP 19-25.

That by virtue of the provisions of paragraph 2(1),(a) & (b) of Part II to the Third Schedule to the Constitution  and Rule 04102 of the Sokoto State Public Service Rules 2001 it is the 2nd defendant that is vested with power to determine the appointments of the Claimants.

That apart from grounds of inefficiency, misconduct and or gross misconduct there are no other grounds or causes recognized by the said rules that may be used to justify the determination of the appointment of a confirmed staff in the civil service of Sokoto State. Consequently, any authority, including the 1st and 2nd  defendants, who intends to determine the appointment of a confirmed staff in the Sokoto State civil service must justify same on any of the grounds of inefficiency, misconduct or gross misconduct to properly and validly exercise that power and that Conspicuously missing from both exhibits Compulsory Retirement G & M is any allegation or proof of inefficiency, misconduct or gross misconduct as ground for the purported compulsory retirement of the Claimant and this is so because indeed the Claimants have served efficiently and without blemish.

Counsel submitted further that the only question now is whether the Claimants have each reached the compulsory retirement age of 60 years or put in 35 years of service as at August 15th 2018 when the 2nd defendant purportedly retired them from the service of Sokoto state Government. That the answer to this is found in the depositions in paragraphs 2, 34(i) &(xxv) of the supporting affidavit and Exhibits Compulsory Retirement A, A1, B, G, H, K and M. From these it can be gleaned that the 1st and 2nd claimants have just attained 53 and 54 years of age and put in 26 and 34 years of service, respectively. The Claimants have consequently not attained the compulsory retirement age of 60 years and or put in 35 years of service to be considered for compulsory retirement in the absence of proven allegations of inefficiency or misconduct or gross misconduct. Counsel urged the Court to resolve issues 1 and 2 in favour of the claimants and against the defendants.

Arguing questions 3, 4, 5,6 and 7 together, Counsel submitted that these issues seek to consider the procedure prescribed by section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and Rules 02809” 04201, 04202, 04203, 04207, 04301- 04306, 04401-044’36 of the Sokoto State Public Service Rules 2001and see how well the defendants in this case conformed/complied with the safeguards provided therein in the purported determination of the appointments of the Claimants.

That in the decision of any person or authority to determine the appointment of a staff or servant peremptorily, the person making or taking such a decision is obliged by Section 36(1) of the 1999 Constitution, as amended, to observe the rules of natural justice or fair hearing which requires simply that the staff whose appointment is to be determined shall be given notice of the fact that the determination of his appointment is being contemplated, the grounds on which the said appointment is being considered for determination, opportunity to make representation to the determining authority and consideration of his representation before the decision to determine the said appointment is taken.

After reproducing the provisions of Section 36(1) of the 1999 Constitution and Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001, counsel concluded that compliance with this mandatory procedure is therefore a necessary condition precedent to a valid exercise of the general disciplinary powers as well as the powers of removal of confirmed civil servants in the Sokoto State Civil Service. That the defendants (most especially the 2nd defendant) woefully failed, refused or neglected to comply with the mandatory requirements of section 36(1) of the Constitution supra and Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401- 04406 of the Sokoto State Public Service Rules 2001 and that the failure of compliance with same renders actions or decisions or steps taken as unconstitutional, unlawful, invalid, null, void and of no effect whatsoever. CONTROLLER OF CUSTOMS & ORS VS. GUSAU (2017) LPELR 42081; AKINEDO & ORS. VS. EDO STATE GOVERNMENT & ORS. (2011) LPEL74174; AMASIKE VS. R.G .C.A. C. (2006) 3 W.R. N. 70 AT 118; NWOKORO V. ONUMA (1990) 3 NWLR (PT .136) 22 AT 32

Counsel then urged the court to resolve issues 3, 4, 5,6 and 7 in favour of the plaintiffs and against the defendants.

Arguing question 8 alone, but written as question 7, Learned Shaka esq. of counsel for the claimants submitted that this issue seek to examine the propriety of granting the reliefs sought by the Claimants in the circumstances of this case.  Counsel reiterated that the purported Compulsory retirement of the Claimants vide Exhibits Compulsory Retirement G and M are invalid, ineffective and amounts to a nullity and referred the court to the case of  CONTROLLER OF CUSTOMS &. ORS VS. GUSAU (2017) LPELR 42081.

Counsel concluded that it would be observed that all the reliefs sought by the Claimants before the court flow naturally from the finding that what the defendants did purporting to retire the claimants compulsorily is a nullity and of no effect hence they ought to be granted without any hesitation and he so urged the Court.

 

  1. CASE OF THE DEFENDANTS.

The defendants filed an 18 paragraph counter affidavit deposed to by one Mohammad Gado Kwandi. The defendants deposed that the 2nd claimant was retired after having attained mandatory retirement age of 35 years of service from the date. That the claimants attended APC political rally, were summoned by Alhaji Musa A. Gobir before a committee and they admitted attending the rally and the committee made a recommendation for their compulsory retirement on ground of public interest after which the head of service raised a memorandum to that effect.That the retirement of the claimants was done in accordance with chapter 4,section 6 Rule 1(04601) .That the 2nd claimant did not file his affidavit in support of the originating summons. Defendants also deposed that the Sokoto Public Service Rules 2001 is still a working draft only as it is not yet issued by any competent authority or person authorized to do so by the constitution and is not gazetted.

Submitting for the defendants, learned Sulaiman Usman SAN argued a preliminary objection that a cursory glance of the originating summons will show indubitably that, the facts in this case are hostile and in dispute and can only be resolved by calling oral testimony of witnesses.  OSSAJ V.WAKWAH (2006) ALL FWLR (Pt.303) 239. NBN LID V. ALAKIJA (1978)9-10 SC 59 at 71.

The learned SAN also argued that in  N.R.C. V. NWANZE (2008)4 NWLR(PART1076)92 at P.109, the Court held that “where the principal issue in the suit is wrongful termination of employment ,it is wrong to commence it by way of originating summons..”

Submitting on the merit of the case, learned SAN argued that section 208 of the 1999 Constitution, appointments made there under are made at the pleasure of the governor, because the Governor has been granted with the power to remove the person appointed.  The power of the Governor under the sub section is not qualified nor is he required to satisfy any condition precedent before exercising such powers.

That contrary to the claim of the Claimants, the Sokoto State Public Service Rules 2001 do not apply to the appointment and removal of a permanent secretary because the Constitution has covered the field. Federal Nigeria Vs Adewunmi (2007) 10 NWLR (Pt.1042)399at P418.INEC V Musa (2003) 3 NWLR (Pt.306) 72 at PP. 158: 201 – 205; Shitta-bey. A.G. Federation (1982) 3 NCLR 166 at P.176; A-G Abia State v. A-G Federation (2002) 6 NWLR (Pt.763) 264 at pp. 391-392.

Counsel further submitted that the claimants were given fair hearing and confronted with the breach of extant Circulars and Rules governing their employment including code of conduct and they admitted by way of confession and avoidance. He referred the Court to the document titled “Report of a committee to investigate the participation of two permanent secretaries in to Rally organized by All Progressive Congress to receive party leaders in the State”(exhibit A).

It was further the submission of the learned SAN that by exhibit compulsory retirement C (by  which the 1st claimant was appointed as general manager Sokoto Central Market), the 1st  claimant had ceased to be a civil Servant and therefore deemed have voluntarily retired from civil service. There is no evidence that he returned to the Civil Service after holding that post.

Counsel also submitted that the public service Rules 2001 are not issued by a competent authority and equally not signed by any person. The Rules are not published in Government Official Gazzette and therefore cannot be genuine. See OGBUANYIYA & 5 ORS V OBI OKUDO (1990) NWLR (PT. 146) 551. Equally, an unsigned document is worthless and entitled to ascription of no weight at all in law. What is more, such a document binds no one. See KWARA INVESTMENT CO. LTD. V. GARUBA (2000) 10 NWLR. (PT. 764) 25 AT 39.

  1. CLAIMANTS REPLY ON POINTS OF LAW

The claimant filed a further and better affidavit and a reply on points of law dated 27/11/2018.In the further and better affidavit, the claimants depose that 2nd Claimant had not attained mandatory retirement of age of 35 years service and was retired based on the directive of the 1st defendant for no cause whatsoever. That the Claimants never had any occasion at all material times between 4/8/2018 and 27/8/2018 or subsequently to meet with a committee by whatever name called comprised of one Alhaji Musa A. Gobir, Permanent Secretary Administration and General  services, Dahiru B. Abbas, Shehu Ladan and Dr. Muh’d Umar Yabo at his office or anywhere to discuss any matter concerning, relating to or connected with any allegation of having been involved in partisan politics as a public officer and or admitting attending any political  rally organized by the All Progressives Congress (A.PC).

That the proceedings in Exhibit A and the Memorandum in exhibit B attached to the counter affidavit of the defendants are all afterthought and made up by the defendants in contemplation of this proceedings to defeat the claims of the Claimants. The letters by which the Claimants were purportedly compulsorily retired (i.e. Exhibits COMPULSORY RETIREMENT G & M attached to the affidavit in  support of originating summons) did  not allege that the Claimants’ were guilty of engaging in partisan politics or retired in the public interest.

 

Submitting in his reply, the learned Shaka Esq argued that the salient facts of this case are not in dispute or irreconcilably in conflict. Indeed the salient facts are admitted by the defendants by implication of lack of a proper traverse or denial in the counter affidavit. The counter affidavit before the Court would reveal that nowhere did the defendants deny the facts deposed in paragraphs 1- 27 , 30, 32, 33, 34(i) – (viii), 36, 37 and 38 of the affidavit in support of the originating summons.

That the depositions in paragraphs 5, 6, 9, 12, 13, 14, 15 and 16 of the counter affidavit relate to post retirement issues. That the facts relied on by the Claimants are admitted by the defendants and whatever iota of dispute that may exist, which is not admitted, is such that it can be resolved by looking at the documentary exhibits before the court without the necessity of calling for pleadings and oral evidence.

Counsel submitted further that a party must be consistent in his pleading and claim. Put another way, a party must not be seen to approbate and reprobate on the same matter or issue. The defendants, both in their counter affidavit and written address of counsel before the Court at different times placed reliance on the Public Service Rules of Sokoto State 2001 as applicable and enabling some actions, only to turn round to submit or claim that such were invalid and inapplicable. Examples of these can be seen in paragraphs 8(a),(b),(c) & (e) on the one hand and  8(f) & (g) of  affidavit on the other hand. See also Exhibits A & C attached to the counter attidavit. The consequence in such a situation is that the Court would completely disregard the case presented and the submissions of learned counsel. This we urge upon your lordship in this case.

With respect to Section 208 of the 1999 constitution, learned counsel submitted that Subsection 5 of this section makes it clear only the appointment of the Secretary to the State Government and personal staff of 1st  defendant made pursuant to the provision of subsection 2(a) & ( d) of this section are at the pleasure of the 1st defendant.

That there is no disputing the fact that the Sokoto Central Market is a Sokoto State Government wholly owned venture hence the power of the Sokoto State Governor to approve the appointment of an officer serving in the Admin. & General Service department of the government of Sokoto state to head the said market as a General Manager. There is nothing in Exhibit Compulsory Retirement C to suggest even remotely that the retirement of the 1st claimant is a precondition for his appointment to head the Sokoto Central Market or that in accepting the said appointment the 1st claimant was putting in his retirement. Finally to bury this notion of deemed resignation, one only needs to take a cursory look at the subsequent action of the defendants vide Exhibit compulsory retirement D, E, F, F1 & G, is it in law permissible/ possible to re-employ a person on a permanent pensionable basis and continue to promote him after the person previously effectively retired from the public service? Is it in law permissible to retire a person from the public service after that person had previously voluntarily retired from the same service? It would seem like a case of double jeopardy, for want of a better word to use. The answer to these questions is clearly No!

 

 

  1. DEFENDANTS PRELIMINARY OBJECTION.

The defendants filed a notice of preliminary objection dated 24/10/2018 on the grounds that the claimants’ counsel did not write his National Identification Number on the processes he filed in Court. The claimants filed a reply to this objection on 12/11/2018.

While arguing this case on 11/12/2018, the defendants counsel, who ordinarily should have argued his preliminary objection before the main case is argued by either party, did not identify and adopt his notice of preliminary objection which was separately filed. For the avoidance of doubt, the record of proceedings of 11/12/2018 with respect to the arguing of the defendants’ case by Mohammed Mohammed, DPP, MOJ, Sokoto State, after the claimant had first argued his case, is hereby reproduced;

Mohammed: The defendants filed a counter affidavit of 18 paragraphs deemed properly filed and served on 12/11/2018, attached to the counter affidavit are four annexures marked as exhibits A,B,C and D. Annexed also is a written address .We adopt our written address as our oral arguments in opposition. We wish to add by way of adumbration that by virtue of section 208(1) (2) of the 1999 constitution, the 1st defendant has exclusive power to appoint and remove all persons mentioned in section 208(2).The power is not conditional but absolute. The Public service rule is subsidiary to this section. Secondly, at page 9 of our written address, we  referred to N.R.C V NWANZE (2008)4 NWLR(PART1076)P.92 AT 109.The use of originating summons in instituting this suit is wrong. I also want this court to take cognizance of the fact of our preliminary objection filed on 24/10/2018. We ask the court to dismiss this suit in its entirety, rather, we ask the court to strike out the suit as the court lacks jurisdiction.” (underlining supplied)

The claimants counsel accordingly did not adopt his reply to the preliminary objection which was not argued by the defendant’s counsel.

I have no reason to adopt the processes relating to the preliminary objection on behalf of the parties. Neither can I take cognizance of the said preliminary objection which has not been identified and adopted by counsel. The preliminary objection is accordingly deemed abandoned and same is hereby struck out.

 

  1. ISSUES FOR DETERMINATION

The questions formulated by the claimants for determination are;

  1. Whether upon a proper interpretation of the provisions or Rules 02809., 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of Sokoto State Public Service Rules 2001, in the absence of any proven grounds of inefficiency or inability to discharge the functions/ duties of their office or misconduct/gross misconduct, your Claimants are entitled to remain/retain their appointments in the Civil service of Sokoto State until each attains the compulsory retirement age of 60 years or put in 35 years,. Service, whichever is earlier?
  2.  Whether upon a proper interpretation of the provisions of Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of Sokoto State Public Service Rules 2001, in the absence of any proven grounds of inefficiency or inability to discharge the functions/duties of their office or misconduct/gross misconduct, the defendants (particularly 2nd defendant) are empowered or entitled to compulsorily retire the claimants from their appointments in the Civil service of Sokoto State before each has attained the compulsory retirement age of 60 years or put in 35 years of service, whichever is earlier.
  3.  Whether upon a proper construction of the provisions of sections  197(1), 202, 207 of the 1999 Constitution of the e Federal Republic of Nigeria, as amended and paragraph 2(1),(a) &(b)  of Part II to the third Schedule thereof the 2nd defendant may validly act on the directive of the 1st defendant as contained/conveyed in the head of service letter reference HS/PER/132/VOL.1 dated August 23, 2018 compulsorily retire the Claimants from their appointments in the service of Sokoto State before the Claimants each has attained the compulsory retirement age of 60 years or put m 35 years of service, whichever is earlier.
  4. Whether upon a proper construction of the provisions of section 36(1) of  the 1999 Constitution of the Federal Republic of Nigeria, as amended as affirmed by Rules 02809, 04201, 04202, 04203, 04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001 the defendants can validly compulsorily retire the claimants from appointments in the Civil Service of Sokoto State without any allegation of and proof/finding of guilt for inefficiency or inability to discharge the functions/duties of their office or misconduct /gross misconduct before the decision purportedly compulsorily retiring them was taken or reached.
  5. Whether the Claimants, having been employed in the Civil Service of Sokoto State are entitled to the benefit of the right of fair hearing under section 36(1) of the 1999 Constitution of the Federal Republic of  Nigeria as affirmed in Rules 02809  04207, 04301 – 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001 when the issue or question of the  determination of appointment by way of compulsory retirement on whatever grounds is being contemplated by the Defendant.  
  6. Whether the purported compulsory retirement of the 1st and 2nd Claimants’ by the 2nd defendant conveyed/contained in the 2nd defendant’s letters titled “Notification of Compulsory Retirement as Permanent Secretary, reference nos. HOS/PS/031/VOL.1 and ROS/PS/019/VOL.1 dated August 27, 2018 without any notice to Claimants and or opportunity to make representation and be heard on the grounds, if any, for their retirement is not a breach of the Claimants’ right under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended as affirmed in Rules 02809, 04201, 04202, 04203, 04207, 04301- 04306, 04401 – 04406 of the Sokoto State Public Service Rules 2001 hence unconstitutional, Unlawful, null void and of no effect whatsoever.
  7.  Whether upon a proper construction of the provision of section 36(1) of the 1999 Constitution of the Federal republic of Nigeria as affirmed by Rules 02809, 04101, 04202, 04203, 04207, 04301- 04306, 04401- 04406 of the Sokoto State Public Service Rules 2001 01 the purported compulsory retirement of the claimants from the civil service of Sokoto State by the 2nd defendant on the directives of the 1st defendant as contained/conveyed in the 2nd defendant’s letters reference nos. HOS/PS/031/V0L.1 and HOS/PS/019/V0L.1 dated August 27, 2018   titled “Compulsory retirement as Permanent Secretary” is a lawful or valid exercise of power to determine the Claimants’ appointments and therefore effective.
  8. Whether the Claimants are entitled to the reliefs sought.  
  9. COURT DECISION

By the affidavit and counter affidavit, the facts constituting the cause of action are not in dispute, except deposition of new facts in the counter affudavit. In the counter affidavit and written address of the defendants, all the arguments but one, raised by the defendants are legal defences and can be summarized as below;

  1. The facts in this case are hostile and in dispute and can only be resolved by calling oral testimony of witnesses.
  2. That the Sokoto Public Service Rules is still a working draft only as it is not yet issued by any competent authority or person authorized to do so by the constitution and is not gazetted.
  3. The Sokoto State Public Service Rules 2001 do not apply to the appointment and removal of a permanent secretary because the Constitution has covered the field.
  4. That the 2nd claimant did not file his affidavit in support of the originating summons.
  5. That the appointment of the claimants was at the pleasure of the Governor under section 208 of the 1999 Constitution.
  6. That the 1st claimant had ceased to be a civil Servant and therefore deemed to have voluntarily retired from civil service when he accepted appointment as the General Manger of the Sokoto Central Market. There is no evidence that he returned to the Civil Service after holding that post.
  7. That the claimants attended APC political rally, were summoned by Alhaji Musa A. Gobir, Permanent Secretary Admin. & General Services Department before a committee, the claimants were given fair hearing and confronted with the breach of extant Circulars and Rules governing their employment including code of conduct which they admitted before they were compulsorily retired in the public interest.

The eight questions for determination formulated by the claimants can be adequately disposed of in the course of considering these arguments raised by the defendants. The Court shall now first consider the defense raised by the defendants seriatim, followed by a consideration of the merit of the claimants’ case. The arguments of the defendants as itemized above shall be balkanized and differently worded in the form of questions as follows.

1.On whether the use of originating summons in commencing this suit is wrong.

The learned defendants’ counsel argued that this suit was wrongly instituted by way an originating summons because the facts in this case are hostile and in dispute and can only be resolved by calling oral testimony of witnesses and also that an originating summons ought not to be used because this is a case of termination of employment and by the authority of N.R.C V NWANZE supra, it is wrong to commence such suit by way of an originating summons.

 

I have read the claimants affidavit, the defendants counter affidavit and the claimants further and better affidavit as well as all the written addresses of both counsel.  I agree with the claimants; counsel that the facts of the employments of the claimants, their last positions held, their ages, the year of their employment and the facts of their compulsory retirements as announced on RIMA RADIO and subsequently formalized by written letters are not in dispute.

The defence of the defendants consists in the main of legal issues. The only seemingly hostile facts relate to the facts about the claimants attending APC rally and the investigation by a committee consisting of the following person; 1. Musa A. Gobir, Permanent Secretary, Administration and General Services Department, Chairman; 2. Dahiru B. Abbas, Permanent Secretary, Ministry of finance, Member; 3. Shehu Ladan, Director General, T.S.B, Member and 4. Dr. Muh’d Umar Yabo, Director Administration Admin. & General Services department, Secretary;  which facts were raised by the defendants.

It is my opinion that these committee members, being that they are neither members of nor set up by the civil service commission, as contemplated by sections 202 and 207 of the 1999 Constitution, but merely an investigative committee set up by the Head of Civil Service, the validity of the action of the Head of Civil Service and this committee has become a question of Law in view of Sections 202 and 207 of  the 1999 Constitution  as it relates to the discipline of the claimants and therefore whether or not they did any investigation is not so much a controversy of fact as it is of law in the circumstance of this case. This is so because by virtue of the provisions of Sections 202 and 207 of the 1999 Constitution, it is the Sokoto State Civil Service Commission that is empowered to discipline the claimants and only it can delegate any of its powers to any officer in the civil service of the state. See CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294(CA) where the court held;

“By virtue of the provisions of Section 202 of the 1999 Constitution, it is the Cross River State Civil Service Commission that is empowered to discipline the appellant and this is not subject to the direction and control of any authority or person”.

 

See also IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION (2005)7 S.C 9PT.III) 135 at 141-142

This court cannot use judicial time in calling oral evidence to ascertain whether the defendants actually did what the Constitution did not contemplate; not in the circumstance of the case at hand. The dispute as to these facts is therefore peripheral and superficial and accordingly, this action can be sustained by originating summons.  In such a situation, there is no need to call for proof by oral evidence. See EDEH &ORS V OKORIE (2018) LPELR where the court held;

“Of course, it is not the law that in an action commenced by originating summons, the fact that a defendant filed a counter-affidavit to it, is tantamount to saying that the matter is contentious and hostile. The decision of the Supreme Court in Barrister Amanda Peter Pam v. Nasiru Mohammed (2008) 16 NWLR (pt. 1112) 1 at 88; (2008) 40 WRN 67 is apt and instructive, to the effect that:”It is not the law that, once there is dispute on facts, the matter should be commenced by writ of summons. No. This is not the law. The law is that the dispute on facts must be substantial and material affecting live issues in the matter. Where disputes are peripheral, not material to the live issues an action can be sustained by originating summons”. 

This question is accordingly resolved against the defendants and in favour of the claimants.

2.On whether N.R.C. v. Nwanze (2008) 4 NWLR (Pt 1076)92 at p.109 paras B-D holds that where the principal issue in the suit is wrongful termination of employment it is wrong to commence it by way of originating summons

I have also considered the argument that a claim based on termination of employment cannot be commenced by an originating summons.

The well known rule that is now trite is that suits can be commenced by originating summons where it only involves the interpretation of Laws and other instruments or where the facts in issue are not hostile. See MICHAEL IMODU NAT. INST. FOR LABOUR STUDIES v MALIKI (2013)1 ACELR  P.146 at pp.166-167.  The subject matter of a dispute does not affect the use of originating summons but hostility of facts relevant to the determination of the dispute.

I have also read the case of NRC V NWANZE supra. It is my view that the case of NRC V NWANZE supra, understood in its proper perspective, did not lay down a blanket rule that cases of unlawful termination of employment cannot be commenced by originating summons. In the first place, the portion quoted by learned SAN is indeed so misleading as to arrive at such a conclusion, but this is only so because Counsel quoted and relied on the Editor’s summary on page 99 of the said report. The main body of the said judgment  per Anyawu JCA is as found in paragraphs B,C,D,E and F at page 109 of the said report where my Lord said thus;

“The learned trial judge had no jurisdiction to enlarge time within which the plaintiff/respondent could bring his originating summons for the enforcement of fundamental Human rights.

The Principal issue in this suit is wrongful termination of employment. The learned counsel for the respondent cannot succeed in hoodwinking this court to believe that the Fundamental Rights of the plaintiff/respondent is the principal issue.

It was indeed wrong for this suit to have been commenced by way of originating summons. This action is definitely hostile and commencement of this suit by originating summons was clearly inappropriate.

This action is principally for wrongful termination or retirement, fundamental rights are just the accessories. See Tukur v. Government of Gongola  State (1989)4 NWLR (Pt 117)page 517 where it was held inter alia:

“if a party’s primary right and or obligations are transgressed without a fair hearing, then he can apply to the court. There ought to be a primary wrong arising from a breach of a primary right before the party wronged can apply to the court for a relief on the ground that in the determination of his civil rights and obligations he was denied a fair hearing”.

 

From the above quoted decision, and subsequent decisions of the Superior Courts, it is clear that a conclusion such as suggested by the Editor of the Nigeria Weekly Law Report, part 1076, is not justifiable; in the opinion of this Court. The simple decisions in that judgment is; 1. That it was wrong to have treated that case as a case for enforcement of Fundamental Human Rights and 2. That the facts of the case were hostile and ought not to have been commenced by way of an originating summons.

Having found that the facts of this case are not so hostile as to warrant calling of oral evidence, this question is resolved against the defendants and in favour of the claimants.

 

3.On whether the Sokoto State Public Service Rules 2001 is not genuine, worthless and lacking probative value in this case.

The defendants also deposed and argued that the Sokoto Public Service Rules 2001 is still a working draft only as it is not yet issued by any competent authority or person authorized to do so by the constitution and is not gazetted and therefore is not genuine, worthless and lacking probative value and therefore it is not applicable in this case. Counsel however did not say which Public Service Rules of Sokoto State is applicable to this case and whether the action of the defendants is justified under such Rules. This was necessary because once the claimants have a complaint against a perceived wrong, they are entitled to have their rights determined under the extant or applicable Law and their case will not be defeated simply because it was brought under the wrong Law. See

ANTHONY ESEKHAIGBE v. FEDERAL ROAD SAFETY COMMISSION (2014) LPELR-24388(CA) where the court held;

 “It has long been established in the case of Falobi v. Falobi (1976) NMLR Vol.1 p.69 that where a relief or remedy is provided for by a written law, that relief or remedy if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law”.

 

The burden still remains on the defendants to justify their action under the extant Public Service Rules applicable to this case. There is no attempt to do so in the counter affidavit and the written address of learned counsel. On the contrary, the same  defendants seek to justify the compulsory retirement of the claimants as a punitive measure based on the said Sokoto State Public Service Rules 2001 in paragraph 8 ( c ) of their counter affidavit and  in paragraph 3 of the second page of EXHIBIT “A” which reads thus;

  1. Recommendation.

The committee after long discussion on the issue and considering chapter 4 section 6 of the Public Service Rules, Sokoto State of Nigeria, “Revised 1st January, 2001 and circular No: HS/ADM/S/50/VOL-1/11 of 4/11/2014, recommended the retirement of the two Permanent Secretaries from service in public interest with immediate effect.

 

In view of this, the defendants cannot deny the applicability of the Public Service Rules, Sokoto State of Nigeria, “Revised 1st January, 2001 to this case since it was one of the documents relied upon in retiring the claimants and particularly when the applicable Public Service Rules justifying the action of the defendants is neither referred to nor relied upon. In any event, I have read chapter four of the previous Rules revised to 1st April 1979 and the provisions are similar to the 2001 Rules, particularly, the 1979 Rules do not justify the action of the defendants.

 

I have carefully read Chapter 4, Section 6 Rule 1(04601) of the Public Service Rules, Sokoto State of Nigeria, “Revised 1st January, 2001 as relied upon by the defendants in paragraph 8 ( c ) of their counter affidavit and  in paragraph 3 of the second page of EXHIBIT “A”, as well as chapters 4,sections 1 rules 2 of both the 1979 and 2001 Rules, these Rules require all actions to be taken by the civil service commission and not the head of civil service. These Rules have not been complied with in purporting to discipline the claimants.

This question is therefore resolved against the defendants and in favour of the claimants.

  1. On whether the provisions of the Sokoto State Public Service Rules is not applicable to the claimants because their employments and removal are regulated by the constitution which has covered the field.

The learned defendants’ counsel, while denying the Sokoto State Public Service Rule revised to 2001 as not genuine, submitted that it is not applicable to the case of the claimants because their employments and removal are regulated by the constitution which has covered the field. This submission is far from the position of the Law. By section 208 of the constitution, permanent secretaries are appointed from among civil servants, they remain civil servants and retain their offices even after the tenure of the Governor who appointed them and if removed from that office for any reason, they return to the civil service. The Public Service Rules of Sokoto state, revised to 2001 or whichever Rules is the extant one, therefore apply to the claimants as permanent Secretaries at all times. See CHIEF AUGUSTINE A.

NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR – 8294 (CA).

This question is resolved against the defendants and in favour of the claimants.

 

  1. On whetherthe 2ndclaimant did not file his affidavit in support of the originating summons.

It has also been argued on behalf of the defendants that the 2nd claimant did not file his affidavit in support of the originating summons. I have read the affidavit in support of the originating summons and I find, as earlier summarized in this judgment, that the depositions made by the 1st claimant and particularly in paragraphs 1, 34 to 38 in the 1st claimants affidavit are deposed to by the 1st claimant on behalf of the 2nd claimant. By section 115(1) of the evidence Act 2011, one can depose to facts from his personal knowledge or from information obtained from another. There is neither a law nor Rules of Court requiring each claimant in a joint claim to depose to an affidavit for himself or to testify for himself. In the instant case, the depositions made by the 1st claimant for himself and on behalf of the 2nd claimant are sufficient for the 2nd claimant to prove his case. I so hold.

This question is  resolved against the defendants and in favour of the claimants.

 

  1. On whether the appointments of the claimants was at the pleasure of the Governor under section 208 of the 1999 Constitution.

Learned SAN also argued for the defendants that the appointment of the claimants was at the pleasure of the Governor under section 208 of the 1999 Constitution.

This argument is not tenable having regards to the position of the claimants who as permanent secretaries are civil servants See CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294(CA) where the Court held in relation to a permanent secretary thus;

“The appellant is a civil servant therefore, he cannot be retired at the pleasure of the Governor or without compliance of the Cross River State Civil Service Rules and Regulations which governed his appointment.”

 

Section 208 of the constitution must be read as a whole for proper understanding; subsections 1 and 2 thereof must not be read in isolation.

Section 208 of the constitution provides as follows;

  1. Appointments by Governor

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

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

       (a)        Secretary to the Government of the State;

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

       (c)        Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated; and

       (d)        any office on the personal staff of the Governor.

(3)  An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of any State or of the Federation.

(4)  In exercising his powers of appointment under this section, the Governor shall have regard to the diversity of the people within the State and the need to promote national unity.

(5)  Any appointment made pursuant to paragraphs (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office:

Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.

 

Here it can be seen that the only appointments made at the pleasure of the Governor are those in subsection 2 paragraphs (a) and (d) which are Secretary to the Government of the State and any office on the personal staff of the Governor, persons appointed under subsection 2 paragraph (b) and (c) to which category the claimants belong, are and remain civil servants even after the tenure of the

Governor or after ceasing to hold such offices. See CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294(CA) where the court held thus;

Section 208(5) of the 1999 Constitution provides that any appointment made pursuant to subsection 2(a) and (d) shall be at the pleasure of the governor and shall cease when the governor ceases to hold office. The officers affected are:

“(a) Secretary to the government of the State;

(d) any office on the personal staff of the Governor.”

The officers under section 208 2(b) and (c) are:

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

(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated.”

Now, it is clear that the Head of Service of the State and Permanent Secretary (which includes the appellant) or other chief executive as aforesaid are persons who have been appointed from the public service of the Cross River State and they do not hold their tenure of office at the pleasure of the Governor and are entitled to return to the public service of the State when the Governor ceases to hold office. Bearing the above in mind it is clear that if for whatever reason the appellant is removed from office as Permanent Secretary by the Governor, he should be returned to the public service of the State in any other capacity, in any Ministry or Department of the Cross River State.

 

Furthermore, this argument is rather besides the point in issue before the Court, what is before this Court is a case of compulsory retirement of the claimants being civil servants, which action necessarily compels the inference of a disciplinary action for a wrong committed by the claimants, thus necessitating full compliance with the relevant statute, rule or regulation; not a case of removal of appointees from office as permanent secretaries. See CHIEF AUGUSTINE A. NAWA v. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS. (2007) LPELR-8294(CA) where the court held;

“Compulsory retirement of a civil servant compels the inference that the civil servant is being subjected to disciplinary action for the commission of any crime or misconduct. In the case of the appellant in this appeal, there is no evidence that he committed any crime, offence or misconduct. If any disciplinary action is to be taken against him it must be in full compliance with the relevant statute, rule or regulation. See Iderima vs. RSCSC (supra) and Shitta-Bay vs. Federal Public Service Commission (supra)”

The appointments of the claimants was therefore not at the pleasure of the Governor. I so find and hold. This question is resolved against the defendants.

 

  1. On whetherthe 1stclaimant had ceased to be a civil Servant when he was appointed as General Manager, Sokoto Central Market, and therefore deemed to have voluntarily retired from the Civil Service.

It is also the defence of the defendants that the 1st claimant had ceased to be a civil Servant when he was appointed as General Manager, Sokoto Central Market, and therefore deemed to have voluntarily retired from the Civil Service. There is no evidence that he returned to the Civil Service after holding that post.

As rightly submitted by claimants’ counsel, the Sokoto Central Market is owned by the Sokoto State Government, it is a department of the Government, Accordingly, appointment as General Manager of the Sokoto Central Market is appointment under section 208 (2) (c), which provides; (c)  Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated; The holder of such office, picked from the civil service, remains a civil servant. The 1st claimant therefore cannot be deemed to have resigned by reason of accepting such appointment.

The learned SAN also submitted that there is no evidence that the 1st claimant ever returned to the civil service, this is contrary to the facts which remain undenied before this Court. The 1st claimant deposed in paragraphs 16, 17, 18, 19 and 20 of his affidavit in support that he was appointed as General Manager of the Sokoto Central Market on 30/7/2007, He was latter appointed as Assistant Director on 13//5/2008, appointed as permanent secretary on 9/3/2012 and subsequently promoted as Deputy Director on 28/3/2013 and he remained as a permanent secretary until his compulsory retirement on 28/8/2018.

I hold that there is evidence, not only that the 1st claimant returned to the civil Service but that he had always remained in the civil service until he was compulsorily retired on 28/8/2018 with effect from 15/8/2018.

This question is resolved against the defendants and in favour of the 1st claimant.

 

  1. On whether where no reason is given for termination of the claimants’ appointment which enjoys statutory flavour, any reason can later be tied to it when they sue for their rights in Court.

The compulsory retirement of the claimants is sought to be justified by the defendants on the grounds that the claimants attended APC political rally, claimants were summoned by Alhaji Musa A. Gobir, Permanent Secretary & General Services Department before a committee, the claimants were given fair hearing and confronted with the breach of extant Circulars and Rules governing their employment including code of conduct. The report of the said committee is exhibit “A”.

The first and pertinent question to ask here is whether the defendants are entitled to raise this as a defence at this stage when such reason was not stated in exhibits COMCOMSORY RETIREMENT “G” and “M”, the instruments by which the claimants were compulsorily retired.

The employment of the claimants herein enjoys statutory flavor, they cannot be compulsorily retired, disengaged, or in any manner disciplined without giving a reason; such was allowed under the common law in respect of master and servant relationship, but even that position has shifted based on application of International Labour Standard and International Best Practice by reason of section 254C (1)(f) and (g) of the 1999 Constitution. See PENGGASSAN V SCHLUMBERGER (2008)11 N.L.L.R (PT.29)164 at191 paras A and B; and ALOYSIUS V DIAMOND BANKPLC (2015)58 N.L.L.R (PT.199) P.92 at 134 paras A-F.

 

Where no reason is given for termination of an employee’s appointment which enjoys statutory flavour, such as in this case, no reason can later be tied to it when he sues for his rights in Court, neither can a reason given be later changed or added to when the employee sues for his rights in Court.

 

In this case, the claimants are civil servants, they have neither attained 60 years of age nor served for 35 years yet. Compulsory retirement is a punitive measure, therefore it cannot be done without a reason, and such reason must be made known to the claimants before and in the instrument of retirement, not for the first time as a defence in court. The defendants are therefore not entitled to this defence. I so find and hold.

 

9.On whether any person or authority other than the Sokoto State Civil Service commission has the power to discipline the claimants.

Supposing that the defendants were entitled to raise this defence, which this Court has already held otherwise, this Court has held that the claimants remain civil servants and that the Public Service Rules applies to them. This implies that any disciplinary action taken on them must be in accordance with the extant Public Service Rules. See

DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS

BAMGBOYE V. UNILORIN; IMASEUN V. UNIVERSITY OF BENIN (2011) ALL FWLR (Pt. 572) 1791 at 1804; U.B.N (NIG.) Ltd VS. OGBOH (1995) 2 NWLR (Pt. 360) 647 at 669. 

The defence of the defendants is double tongued and inconsistent. In one breath, they relied on chapter 4 section 6 rule 1 of the Sokoto State Public Service Rules 2001 and in another breath they contend that the said Rules cannot be genuine, it is worthless and the Court should not attach any value to it.

That the defendants did not comply with any applicable Public Service Rules is evident as the involvement of the Civil Service Commission is not mentioned in any way in the discipline of the claimants, neither are the said committee members made up of 1. Musa A. Gobir, Permanent Secretary Admin. & General Services Dept. Chairman; 2. Dahiru B. Abbas Permanent Secretary Ministry of finance, Member; 3. Shehu Ladan, Director General, T.S.B, Member and 4. Dr. Muh’d Umar Yabo Director Administration Admin. & General Services Dept. Secretary said to be members of or constituted by the Civil Service Commission, but rather the committee was an investigative committee set up by the Head of Civil Service, (see exhibit A). Their action is invalid in view sections 202 and 207 of the 1999 Constitution and Rule 04102 of the Sokoto State Public Service Rules 1979 and 2001. See IDERIMA V RIVERS STATE CIVIL SERVICE COMMISSION (2005)7 S.C 9PT.III) 135 at 141-142 where the Supreme Court per Onu JSC held;

“Adverting to the civil service Rules, neither the Accountant General nor the Board set up by the Accountant General has the power to discipline the appellant and until the civil service rules otherwise provide, no other method of discipline or extraneous recommendations should be adopted in the exercise. This is so expressed in rule 04107of the civil service rules”. (same with  Rule  04102 of the Sokoto State Public Service Rules 1979 and 2001)

The implication is that the claimants were not removed in accordance with the provisions of the Constitution and the Public Service Rules of the state; such a purported disciplinary action cannot stand. See

DR. HENRY EFFIONG BASSEY v. ATTORNEY-GENERAL, AKWA IBOM STATE & ORS

BAMGBOYE V. UNILORIN;  IMASEUN V. UNIVERSITY OF BENIN (2011) ALL FWLR (Pt. 572) 1791 at 1804;  U.B.N (NIG.) Ltd VS. OGBOH (1995) 2 NWLR (Pt. 360) 647 at 669. 

By the depositions in paragraph 8 (a, b, c and d) of the defendants’ counter affidavit and exhibit “A”, the claimants were compulsorily retired based on the findings and recommendations of an investigative committee. This is a wrong procedure that cannot stand, given the status of the claimants’ employment. See FUT, YOLA V MAIWUYA &ORS (2014)3ACELR P.64 at P.75 where the Court of Appeal per Ndukwe-Anyanwu JCA held,

It is not proper for an employer to remove an employee on the basis of the Report of an investigative panel only. The employer must take a step further by setting up a disciplinary panel that would determine the guilt or innocence of the accused employee. State Civil Service Commission v. Buzuqbe (1984) 7 SC Pg 19.

This question is resolved against the defendants and in favour of the claimants.

Now, if the said 2001 Rules cannot be genuine, if it is worthless and the Court should not attach any value to it, as argued by the defendants, on what then do the defendants depend in justifying the untimely retirement of the claimants? At least not the public service rules as deposed to in paragraph 8(c) of the counter affidavit and referred to in exhibit “A”. What then is left is the defendants reliance on a circular dated 4/11/2014 with reference NO.HS/ADM//S/50/VOLT/11 which circular enjoins civil servants who are interested in joining partisan politics to either retire from service or resign their appointments in line with provisions of Public Service Rules. This is a another legal question which we now turn to.

10.On whether the claimants can be disciplined for attending a political Rally.

The discipline of the claimants is also alleged to be in line with extant Circulars and Rules governing their employment including Code of Conduct. The defendants have attached a circular, exhibit ‘C”, as the circular violated. The content of this circular is as follows;

“It is hereby notified for general information that all civil Servants who are interested in Joining partisan politics should either retire from service or resign their appointments, in line with provisions of Public Service Rules, with immediate effect”.

My understanding of this circular is that it is simply a restatement and a reminder to civil servants of the provision of sections 66(1)(f), 107(1)(f),137(1)(g) and  182(1)(g) of the 1999 constitution as amended which provides in similar wordings as follows;

  1. Disqualifications

(1)  No person shall be qualified for election to a House of Assembly if—

       (f)        he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election.

The Circular cannot carry any meaning contrary to or beyond the Constitution in view of section 1(3) of the said 1999 Constitution. Besides the above restriction in respect of civil servants who want to contest elective offices, there is no constitutional restraint on the rights of civil servants to participate in politics at any level other than resigning 30 days before an election in which such a civil servant is a candidate contesting for an elective office.

Section 40 of the 1999 constitution grants the claimants the right to participate in politics. This right was confirmed by the decision of the Supreme Court in the case of  INEC V MUSA (2002)17 NWLR (Pt.796) 412; (2003) LPELR-1515(SC),

based on the provision of section 40 of the Constitution of the Federal Republic of Nigeria 1999.

In that case, Pursuant to its power under section 228 of the 1999 Constitution, the National Assembly enacted the Electoral Act 2001. Section 79 (2)(c) provides that a person shall not be a member of a political party if he is a member of the Public Service of the Federation, a State or Local Government or Area Council as defined by the Constitution.

Section 40 of the Constitution of the Federal Republic of Nigeria 1999  provides that:
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

Section 162 of the Electoral Act 2001 enabled INEC to, “issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for administration thereof.”

It was pursuant to this provision and the Constitution that INEC issued guidelines.

Guideline 5(b) stipulated thus;

“ a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State”.

 

The plaintiffs among other reliefs, sought for;

    “A DECLARATION that guideline No. 5(b) contained in the 1st defendant’s guidelines for the registration of Political Parties dated the 15th day of May, 2002 issued by the 1st defendants, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that “a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State” is unconstitutional and therefore null and void.”

 

In the leading judgment, Ayoola JSC (as he then was) held as follows;

 “Section 79(2)(c) of the Act was invalid because it was inconsistent with section 40 of the Constitution. In terms of section 45(1)(a) of the Constitution, there is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public Service or Civil Service of the Federation, a State or Local Government or Area Council from eligibility to be registered as a member of a political party. The submission that the restriction is a valid derogation from section 40 by virtue of section 45(1)(a) of the Constitution was erroneous”.

 

In a consenting judgment, Uwais, CJN, as he then was, said thus;

The provisions of section 40 of the 1999 Constitution are clear. Their import is to allow “every person,” including public office holders and civil servants, the freedom to assemble freely and associate with other persons to form or belong to any political party, or trade union or any association for the protection of his interests. The section has made no exception and there is no proviso therein limiting its application to civil servants or public officers.

Since section 40 of the 1999 Constitution has specifically allowed every person the right to assemble and associate with any other persons in order to inter alia form or belong to any political party for the protection of his interests, I hold that both the provisions of section 79 subsection (2)(c) of the Electoral Act, 2001 and guideline No. 5(b) are inconsistent with the Constitution. 

 

From the above decision, it is clear that the claimants have a constitutional right as guaranteed by section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended to belong to any political party of their choice.

The right to belong to a political party is not complete if one cannot participate in the activities of the said party. The only constitutional restraint is for a civil servant who is contesting for an elective office to resign his appointment 30 days before the election in which he is a candidate.

The limited restraint or restriction in section 40 of the constitution implies clearly that a civil servant can be a registered member of a political party and participate in its activities such as a political rally.

 

It is therefore clear that even if the claimants had participated in the APC political rally, they could not be disciplined for so doing, having violated no law or rule by so exercising their constitutional rights. This defense also fails and is resolved against the defendants and in favor of the claimants.

 

11.On the merits of the claimants’ case.

The defences raised by the defendants have all failed, and the position of the law has been shown to be in favour of the case of the claimants, the issues raised by the claimants do not need any further independent consideration in view of the above findings. The implication of all the findings above is that all the questions as formulated by the claimants for determination are answered in favour of the claimants and against the defendants, and accordingly, the compulsory retirements of the claimants, as contained in exhibits “G” and “M”, both dated 27/8/2018, which are punitive measures, are null and void and ought to be set aside. I so find.

 

12.On the remedies available to the claimants.

Issue 8 relates to the remedy available to the claimants. The law is settled that in an employment with statutory flavor as that of the claimants herein, where the removal, dismissal or retirement is found to be unlawful, the remedy is reinstatement except where reinstatement is not practicable, in which case the claimant will be awarded damages equivalent to what he would have earned for the unexpired term of his office. See OMIDIORA V. FED. CIVIL SERVICE COMM. (2007) VOL.44 WRN 53 AT 73 LINES 35-45 (CA) where the court held;

“The precedent had always been that where unlawful termination is proved and reinstatement is impossible, where claimed and proved, the plaintiff would be entitled to the salaries and allowances of the unexpired term of employment.”

See also HON. CHIGOZIE EZE & 147 0RS. V. GOV.OF ABIA STATE & 2 ORS (2015)6 ACELR  P.1 at 19.

 

The 1st claimant was born on 2/1/1965, as at August, 2018, he was only 53 years old, he had not attained 60 years of age and therefore could not be retired on ground of age. Similarly, the 1st claimant joined the Sokoto State Civil Service on 23/7/1992, as at August, 2018, he had only served the state for 26 years, he had not yet served for 35 years and so could not be retired on ground of years of service. The first claimant still has 7 years to make up 33 years of service to the state before retiring at the age of 60 years on 23/7/ 2025. The compulsory retirement of the 1st claimant is therefore declared unlawful, null and void and accordingly, same is hereby set aside.

The 1st claimant is therefore entitled to be reinstated to his office and to serve for the unexpired term of his office. The 1st claimant is also entitled to the sum of N1, 582,030.00 as his five months salary arrears from 15th August, 2018 to the date of this judgment, calculated at N316, 406.00 per month as per his pleadings and evidence. See EKEAGWU V. NIGERIAN ARMY 11-6-2010 (2010) 16 NWLR 419; C.B.N. V. IGWILLO (2007) 4 – 5SC 154.

 

The 2nd claimant was born on 2/1/1964 as at August, 2018, he was only 54 years of age and could not be retired on grounds of age. Similarly, the 2nd claimant joined the Sokoto state civil service on 3/10/1983 as at August 2018; he had served the state for 34 years 10 months only, remaining two months for him to retire on the 3/10/2018 on ground of 35 years of service. The compulsory retirement of the 2nd claimant is therefore declared unlawful, null and void and accordingly, same is hereby set aside.

However, I decline to make an order of reinstatement in favour of the 2nd claimant since we are now in January, 2019 and he was supposed to retire in October 2018.This is one such situation where an order of reinstatement is neither  practicable nor convenient. The 2nd claimant is entitled to be issued retirement notice and other relevant retirement documents reflecting his retirement on 3/10/ 2018 on grounds of having served the state for 35 years. The 2nd claimant is also entitled to the sum of N474,609.00 representing one month and two weeks’ salary arrears from 15th  August,2018 to September,2018 calculated at N316,406.00 per month as per his pleadings and evidence.

 

13.On injuction

The claimants have also prayed in their relief 10 for an order of injunction restraining the defendants by themselves, their servants or agents from interfering in any way or manner with the Claimants in the performance of their duties and or withholding their salaries/emoluments/entitlements until their appointments are lawfully determined.

This Court is of the considered view that having granted reinstatement and payment of earned salaries for period of unlawful retirement, relief 10 has become superfluous and same is hereby refused.

14.On Solicitors Fees

The claimants have also prayed in their relief 8 for a mandatory order directing the defendants by themselves, their servants or agents to pay the sum of N15, 000,000.00 being cost which the Claimants were wrongfully constrained to incur to engage solicitors to prosecute this action. This claim before the Court is without any proof at all.

The Courts have always frowned at and condemned the practice of claiming for solicitors fees from the opponent but this practice has persisted. The claimants cannot claim for solicitor’s fees from the defendants even if their claim succeeds. See CHUKWUDINMA V. ACCESS BANK PLC (2015) 56 N.L.L.R. (PT.192) P.407 AT P.P 436-437 where this Court per Kola-Olalere J held;

“It is unethical and an affront to public policy to pass on the burden of solicitor’s fees to the other party. It is an unusual claim and it is difficult to accept in this country as things stand today. The situation in the case at hand is even worse because the claimant did not give any evidence on the amount that his solicitor is claiming. It is trite law that he who asserts the existence of fact must prove. The claimant’s claim for his solicitor’s fees here is an invitation to the Court to speculate. The claimant is not entitled to claim his solicitor’s fees from the defendant. S.P.D.C. v. Okonedo (2007) All FWLR (Pt. 368) 1104 at 1137 -1138 Paras. E- D: Nwanji v. Coastal Serv. (Nig.) Ltd (2004) 11 NWLR (Pt.885): [2004) LPELR SC.151/1999 (2004) 18 NSCQR 895 at P.18, paras. B-E, Oyebode  V Gabriel (2013) All FWLR (PT,669) 1043 at 1083 and section 137(1) of the Evidence Act referred to]” 

See also UCHEGBU V. ECOBANK NIG PLC (2015) 52 N.L.L.R 9PT.176)P.579 AT PP.603-604

The prayer for N15, 000,000.00 as solicitor’s fees is refused.

 

14.On punitive and or exemplary Damages

Similarly, the claimants have also prayed in relief 9 for a mandatory order directing the Defendants by themselves, their servants or agents to pay the sum of N100, 000,000.00 as punitive and or exemplary damages to each of the Claimants for physical and emotional/mental trauma caused by the wrongful determination of their appointments.

A claimant cannot ask for reinstatement and payment of his entitlements and at the same time ask for exemplary damages as that will amount to double compensation. See   ONALO V. CHAIRMAN. POLICE SERVICE COMMISSION & ANOR. (2015) 55 N.L. L.R (PT.188) P.473 AT P.501 where this court per Shogbola J (as he then was) held;

“In an employment with statutory flavor which has been wrongly terminated, the claimant will be entitled to reinstatement only as both reinstatement and damages cannot be awarded together”

See also EKEAGWU V. NIGERIAN ARMY 11-6-2010 (2010) 16 NWLR 419 where the Apex Court per Onnoghen J.S.C held,

 

“I am, however, not unmindful of the fact that where a plaintiff seeks the relief of reinstatement which relief is granted, the issue of measure of damages for wrongful termination/dismissal/retirement becomes irrelevant because upon reinstatement the plaintiff/party is entitled to be paid all his arrears of salary/emoluments including fringe benefits up to the point/time of reinstatement and thereafter as and when due and payable”.

 

The claim for N100, 000,000.00 as punitive and or exemplary damages is hereby refused.

 

  1. COURT ORDER

For the avoidance of doubt, the claims of the claimants succeed in part and the Court hereby declares and orders as follows;

  1. The compulsory retirement of the claimants as contained in exhibits “G” and “M” both dated 27/8/2018 with effect from 15/8/2018 before the attainment of 35 years of service or 60 years of age is declared unlawful, null and void and accordingly, same is hereby set aside.

 

  1. The 1st claimant is hereby reinstated to his office from today,17th day of January,2019 with all his salaries and entitlements and to serve for the unexpired term of his employment until his retirement on 23/7/2025.

 

  1. The defendants are hereby ordered to pay to the 1st claimant the sum of N1, 582,030.00 (one million, five hundred and eighty two thousand, thirty naira) as his five months salary arrears from 15th August, 2018  to today 17th January, 2019 calculated at N316, 406.00 (three hundred and sixteen thousand, four hundred and six naira) per month.

 

  1. The 2nd defendant is hereby ordered to issue to the 2nd claimant retirement notice and other relevant retirement documents reflecting his retirement on 3/10/ 2018 on grounds of having served the state for 35 years.

 

  1. The defendants are hereby ordered to pay to the 2nd claimant the sum of N474,609.00 (four hundred and seventy four thousand, six hundred and nine naira) representing one month and two weeks’ salary arrears from 15th August,2018 to September,2018 calculated at N316,406.00 (three hundred and sixteen thousand, four hundred and six naira) per month.

 

  1. The judgment sums are to be paid within 30 days of this judgment failure upon which the judgment sums shall each attract 10% interest per annum.

 

Cost is assessed at N100, 000.00 (one hundred thousand naira) in favour of each claimant.

Judgment is read and entered accordingly.

…………………………….

HON. JUSTICE K.D.DAMULAK

PRESIDING JUDGE, NICN SOKOTO

 

 

 

 

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