IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 11th January, 2017
SUIT No: NICN/OW/13/2013
Between:
Obinna Paul Ufomadu - Claimant
And
1. Governor of Imo State
2. Attorney General of Imo State
3. Imo State Civil Service Commission Defendants
4. Secretary to Imo State Government
5. Imo State Government
Representation:
K. C. O. Njemanze SAN, with K. I. Uduma for the Claimant
B. N. Amagheronu, Chief State Counsel, Imo State Ministry of Justice, for the Defendants
JUDGMENT
The Claimant commenced this suit by way of a Complaint on 23rd August 2013 and claimed against the Defendant as follows:
1. A Declaration that the Claimant is still a Permanent Secretary of the Imo State Government and is entitled to his salaries, emoluments, benefits and privileges till 29th October 2017.
2. A Declaration that the Claimant is only due for retirement on 29th October 2017, when he would have attained 57 years of age and 35 years of service.
3. A Declaration that the purported retirement of the Claimant from Imo State Civil Service by the Defendant (vide letter dated 30th May 2013 reference number CSC/P.9/S.6/IV/105 issued by the Chairman of the 3rd Defendant is null and void, and of no effect.
4. An Order setting aside the purported retirement of the Claimant from Imo State Civil Service by the Defendant (vide letter dated 30th May 2013 reference number CSC/P.9/S.6/IV/105 issued by the Chairman of the 3rd Defendant.
5. An Order reinstating the Claimant as Permanent Secretary in the Imo State Civil Service.
6. An Order restoring the payment of his salaries, emoluments, benefits and privileges to the Claimant by the Defendants from May 2013.
7. An Injunction restraining the Defendants, their servants and/or agents from retiring the Claimant from the Imo State Civil Service before 29th October 2017.
The complaint was filed with the Statement of Facts, Claimant’s List of Witnesses, Sworn Deposition of Claimant’s witness, Claimant’s List of Documents and Copies of Documents to be relied on. These originating processes were served on the Defendants. The Defendants entered appearance on 31st January 2014 vide a motion for extension of time and subsequently on 17th March 2014 filed a Statement of Defence and other accompanying processes vide a motion for extension of time. These were duly regularized and preliminary applications were also duly taken and resolved. Hearing commenced on 17th February 2016. The Claimant testified as CW1 and Sam Ezeji testified as the DW1. Hearing ended on 1/6/2016, and parties were ordered to file their final written addresses. The Defendants’ counsel filed his address on 14/6/2016; the counsel for the Claimant filed his address on 11/7/2016. These were regularized accordingly, and parties adopted their final written addresses on 27/10/2016.
In the Defendant’s counsel final address, one issue was formulated for determination, to wit:
Whether the Claimant is entitled to his claim in view of the enormous powers granted the 1st Defendant by the Constitution of FRN 1999 as amended.
Learned counsel for the Defendants argued that it is the Nigerian President’s duty to appoint any Director to a Permanent Secretary in any Federal establishment while the Governor of a State does same in the State. In the instant case, counsel submitted that the 1st Defendant appointed the Claimant a Permanent Secretary from his position as a Director in the Imo State Civil Service, and validly retired the Claimant in line with Section 208 of the 1999 Constitution. Further, counsel contended that Section 208 of the selfsame Constitution empowers the 1st Defendant to appoint Permanent Secretaries, and where the Constitution or other statute gives a person authority or power to perform an act, it is wrong to impose limitations on the exercise of such powers; where such limitations are not provided for in the enabling legislation. See AKUNEZIRI vs. OKENWA (2000) 82 LRCN 336. Again, it is the submission of counsel that it is the court’s duty to adopt a liberal interpretation in the construction of the provisions of the constitution or any statute; meaning that where statutory provisions must be read in their literal and ordinary words to get their real meanings. More so, counsel contended that the office of Permanent Secretary is a political appointment; attested to by the conditions of service and fringe benefits attached to it and the appointment of Permanent Secretaries is not regulated by the Imo State Civil Service Rules. Counsel is of the view that the Defendants in their evidence during trial testified that the Imo State Civil Service Rules does not regulate the appointment of Permanent Secretaries; and that piece of evidence was not contradicted by the Claimant. The court was urged to act upon this piece of evidence and hold that the Claimant’s retirement letter was lawful and issued from the appropriate authority.
Also, counsel asserted that the constitutional provision empowering the 1st Defendant to remove a person as a Permanent Secretary does not require that a reason be proffered for such removal. It is counsel’s argument that an executive act of removing a Permanent Secretary is not actionable in a court of law. See A.G ONDO STATE vs. A.G. EKITI STATE (2001) 19 LRCN 3065 at 3087. Similarly, counsel submitted that the Claimant cannot infer proffering a reason for removal; into the constitutional provision, thereby limiting the Governor’s powers which were not contemplated by the drafters of the Constitution. Counsel urged the court to dismiss this suit with costs because from the facts of this case and applicable laws, the Claimant failed to prove the reliefs in his statement of facts.
Learned counsel for the Claimant also identified one issue for determination in his final address, as follows:
Whether the Claimant having not attained the age of 60 years or Thirty Five years of service can be prematurely and compulsorily retired from the Imo State Civil Service by the Defendants.
Arguing this issue, counsel posited that the Claimant is a public officer within the ambit of ACHU vs. C.S.C. CROSS RIVER (2009) 3 NWLR (Pt. 1129) 498, in which a public officer was defined as a person engaged in the service of the state in a civil capacity. Also, counsel contended that the undisputed fact that the Claimant is a civil servant working under the 3rd Defendant means that the Claimant’s employment has statutory flavour and his contract of service is governed by the Imo State Civil Service Rules. In support of this contention, counsel referred the court to the case of PHCN PLC vs. OFFOELO (2013) 4 NWLR (Pt. 1344) 417, held thus:
“Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavour include the following:
1. the employer must be a body set up by statute.
2. The establishing statute must express provisions regulating the employment of staff of the category of the employment concerned, especially in matters of discipline.”
Counsel submitted further that the Claimant’s employer is a creation of the 1999 Constitution, with powers to appoint persons to offices in the Imo State Civil Service, dismiss and exercise disciplinary control over persons holding such offices as shown in the Claimant’s employment letter, which was tendered as Exhibit C1 in evidence without the defendants’ objection. It is counsel’s submission that from the evidence before this court and the provisions of law, the claimant’s employment has statutory flavour as it is protected by statute. See NAWA vs. A.G. CROSS RIVERS STATE (2007) LPELR-8294 (CA). Again, counsel argued that by virtue of Section 31 of the Imo State Civil Service Regulations, the Claimant is due for retirement upon attaining 60 years of age or spending 35 years of service. It is counsel’s argument that since the Claimant’s employment has statutory flavour; the 1st Defendants cannot unilaterally determine the contract of service or retire the Claimant before he attains 60 years of age or spends 35 years of service, or for no just cause duly established. More so, counsel is of the view that where a statutory requirement for exercise of legal authority exists; the employer is expected to follow the requirement; any non-adherence renders the purported retirement a nullity. See AKINYANJU vs. UNILORIN (2011) All FWLR (Pt. 569) 1080 at 1147-8. Furthermore, counsel argued that the 1st Defendant lacks the power to order the 3rd Defendant to retire the claimant without following the due process stated in the Imo State Civil Service Rules. Counsel referred once again to NAWA vs. A.G. CROSS RIVERS STATE (supra), where it was held thus:
“Though a Governor of a state has the power to appoint civil servants, he cannot remove such civil servant without following due process stated in the civil service rules and regulations…it is not the intention of the legislator, that under section 208(1) of the 1999 Constitution, a Governor can just retire a permanent secretary without just cause.”
Similarly, counsel submitted that the purported letter retiring the Claimant did not disclose a cause for the retirement, and indicated that it was the 1st Defendant who took the unlawful decision and directed the 3rd Defendant to convey the unlawful directive. It is the submission of counsel that the Defendants failed to establish a just cause for the Claimant’s purported retirement. Counsel cited the case of OLUFEAGBA vs. ABDULRAHEEM (2009) 18 NWLR (Pt. 1173) 462 at 463-4, where it was held as follows:
“In an employment with statutory flavour, the reason for the termination of the employment is ‘very crucial’ to the case of both parties. The reason must be ascertainable and must be in accordance with the letter of appointment, governing regulations and statutory provisions.”
Again, counsel argued that the purported retirement of the Claimant is unlawful, and unconstitutional, in the light of the fact that there was no evidence to show that the Civil Service Rules was adhered to. Also, counsel’s opinion is that by virtue of Section 202 of the 1999 Constitution, the 3rd Defendant shall not be subject to the direction and control of any other authority or person including the 1st Defendant. Thus, counsel asserted that the directive of the 1st Defendant to the 3rd Defendant as reflected in the Claimant’s retirement letter is illegal, unconstitutional, null and void. See NAWA vs. A.G. CROSS RIVERS STATE (supra) and A.G. CROSS RIVERS STATE vs. OKON (2007) All FWLR (Pt. 395) 370. Consequently, it is the contention of counsel that the 1st Defendant’s powers are limited by the law, and the Claimant having being appointed as permanent secretary, holds his tenure as circumscribed by the Constitution and the Imo State Civil Service Rules. Counsel contended that where legislation prescribes specified duties to be performed by specific persons; only those persons that can validly discharge the duties, anything contrary would be illegal. See ALHASSAN vs. A.B.U. ZARIA (2011) 11 NWLR (Pt. 1259) 417 at 549. Similarly, counsel argued that the Claimant was retired prematurely because he was born on 14/6/1960, was employed by the Imo State Civil Service on 29/10/1982 and was 53 years with 31 years in service; below the statutory requirement when he was purportedly retired by the defendants. Counsel drew the court’s attention to the holding in PHCN vs. OFFOELO (supra) at page 409, where it was held inter alia:
“To force a public servant into retirement, that is before he gets to his retirement age, is an unusual action against him in his career. There is no doubt that the retirement of the respondent by the appellant was a premature retirement which was capable of crippling the respondent. The said retirement was null and void, and of no legal effect whatsoever.”
Again, counsel submitted that where there is an improper removal of an employee from statutory employment, the consequence is that the employee has not been removed; and once such dismissal or termination is declared null and void, nothing legally stands in the way of the Claimant having his job back. See KWARA POLY vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 199. Counsel urged the court to hold that the Claimant’s purported premature retirement is unconstitutional, null and void; and grant the Claimant’s reliefs.
The Defendants Counsel’s Reply on Points of law reiterated the earlier submissions of counsel in his final address. However, counsel added that the powers of the 1st Defendant granted under Section 208(1) of the 1999 Constitution, are powers of appointment and not promotion. Consequently, counsel’s opinion is that the 1st Defendant can exercise his discretion under this section to appoint any person he likes as Permanent Secretary, irrespective of the person’s grade in the civil service and remove a person so appointed. Also, counsel submitted that the 1st Defendant can either exercise the powers of his office in person; or delegate to any officer or agency of his government, in the manner he delegated V.N.C. Ibenye-Ugbala, the then secretary to the 5th Defendant to sign the Claimant’s appointment letter; and delegated A.E. Iheka to sign the Claimant’s retirement letter. Further, counsel argued that the 1st Defendant’s powers under Section 208(1) of the 1999 Constitution, to appoint or remove a Permanent Secretary is absolute, and the position of the law is that the reason or motive that compels an employer to terminate the employment of an employee is irrelevant. See the following cases:
1. SOGBETUN vs. STERLING PRODUCTS LTD (1973) 1 ALR 323
2. ASHEIK vs. GOVERNOR OF BORNO STATE (1994) 2 NWLR (Pt. 326) 344
3. ARAROMI RUBBER ESTATE LTD vs. OROGUN (1999) 1 NWLR (Pt. 586) 302.
COURT’s DECISION
Having heard the arguments of the learned counsels to the parties, I will now consider the case. In doing that, it is necessary that the facts of the case as presented from the angle of both parties be examined.
The facts of the Claimant’s case, as narrated by him in his evidence are that he was employed by the Secondary Education Management Board as Master III on 29/10/1982. He was later appointed as Clerk Assistant on 11/7/1989. He rose through the ranks in civil service until 15/11/2010 when he rose to the position of Director/Deputy Clerk of the Imo State House of Assembly. By a letter dated 12/5/2011, the Secretary to the Government of Imo State conveyed to the Claimant his appointment as Permanent Secretary. The Claimant said he was born on 14/6/1960 and he will attain 60 years of age in 2020. By the provisions of the Public Service Rules, the Pension Act and other extant laws, he will be due for retirement in 2017 when he would have served the mandatory service of 35 years. His condition of service in the Imo State Civil Service is governed by the Public Service Rules and other extant laws but the 1st Defendant prematurely and compulsorily retired him from service vide a letter dated 30/5/2013 without regard to the Public Service Rules. The letter was signed on behalf of the Chairman of the 3rd Defendant by one E.A Iheka, the Acting Permanent Secretary. The letter did not state the reason for the forced retirement nor did it disclose that the retirement was done by the appropriate authority. The 1st Defendant did not comply with the Public Service Rules before retiring him prematurely. The Claimant went further that being a civil servant, his employment has statutory flavour and he had not reached retirement age at the time he was retired as he had only served for 31 years 5 months at the time he was retired. The Claimant further stated that the 1st Defendant did not comply with the PSR and neither does the 1st Defendant or 4th Defendant have the power to retire him. The 1st Defendant acted in excess of his power when he retired the Claimant from service. The retirement was not the decision or act of the 3rd Defendant and no reason was given for his retirement nor was any allegation of misconduct leveled against him.
On 1st June 2016, the witness called by the Defendant adopted a witness statement he said he deposed on 17th March 2014. This deposition was filed alongside a motion filed on 17th March 2014 by the Defendants seeking an order of this court extending time to file statement of defence, the written deposition of the witness and other processes. The Defendants also sought an order deeming the processes as properly filed and served. That motion was not moved or otherwise granted by this court at any time in these proceedings. The statement of defence and witness statement were filed out of time and there is no order of court extending time for the Defendants and there is no order deeming the processes as properly filed. Although the implication is that the Defendant’s statement of defence and witness statement are not properly before this court, I shall, however in the interest of justice and fair hearing, deem the default as an irregularity pursuant to Order 5 of the Rules of this court. I will therefore consider the Defendants’ defence nonetheless.
The Defendant’s witness, Samuel Chinedum Ezeji, is a Chief Administrative Officer in the 3rd Defendant. He told the court that the Claimant was appointed a permanent secretary/Clerk of the Imo State House of Assembly by the 1st Defendant who, in exercise of the powers conferred on him, also retired the Claimant from the service of Imo State Government. The Claimant’s retirement was done in accordance with the law and by the appropriate authority. When the Claimant accepted his appointment as a Permanent Secretary, his condition of service was no longer governed by the Imo State Civil Service Rules. The Claimant was retired by the same authority who appointed him. DW1 stated further that the 1st Defendant is empowered to appoint any qualified civil servant into the position of Permanent Secretary and to retire such a person. The 1st Defendant can also delegate his function to any of the Defendants and in retiring the Claimant, no reason need be disclosed.
Having examined the facts of this case, it is my view that the issue to be determined in this suit is:
Whether the Claimant has been validly and properly retired from the Imo State Civil Service.
The dispute in this case arose from the retirement of the Claimant from the Imo State Civil Service. From the facts of the case, it is not in dispute that the Claimant was a civil servant in the Imo State Civil Service and in May 2011, he was appointed by the 1st Defendant as a Permanent Secretary in the Imo State Civil Service. On 30th May 2013, he was retired from service vide letter dated 30/5/2013. The Claimant’s case is that he has not reached retirement age or served up to 35 years in service when he was retired from service and that the 1st Defendant who retired him from service has no such power to retire him. The Defendants have contended however that the Claimant’s retirement was lawful as it was done by the appropriate authority. Let me mention here that the Claimant has described the 1st Defendant as the Chief Executive Officer of Imo State while the 3rd Defendant, a creation of the constitution, has the powers to appoint persons into the Imo State Civil Service and to dismiss and exercise disciplinary control over persons in the Imo State Civil Service.
From the evidence of the parties, the fact that the retirement of the Claimant from the civil service was done by the 1st Defendant is not in dispute. The Claimant said the 1st Defendant prematurely and compulsorily retired him from service vide a letter dated 30/5/2013 and tendered the letter in evidence as Exhibit C4. DW1 too told the court that the Claimant was appointed a Permanent Secretary/Clerk of the Imo State House of Assembly by the 1st Defendant who, in exercise of the powers conferred on him, also retired the Claimant from the service of Imo State Government. DW1 tendered Exhibit D in evidence. In Exhibit C4, which was signed by one A. E. Iheka, Acting Permanent Secretary for the Chairman of the Imo State Civil Service Commission, the Claimant was informed in Paragraph 1 of the retirement letter as follows:
“I am directed to refer to letter no. SGI/S.0011/S.2/T.1/91 dated 28th May 2013 from the Secretary to the Government of Imo State on the above mentioned subject matter and convey the directives of His Excellency, the Executive Governor of Imo State, Owelle Rochas Anayo Okorocha (OON) to retire you from the Imo State Civil Service with effect from Friday 24th May 2013.
It is clear in this content of Exhibit C4 that the Claimant was retired from service by the 1st Defendant. The 3rd Defendant was only instructed to convey the retirement to the claimant. The Defendants’ Exhibit D is a letter signed for the Secretary to the Government of Imo State by one E. I. Igaro, the Permanent Secretary, Economic Affairs Bureau. The letter was addressed to the Chairman of the Imo State Civil Service Commission and it reads:
“RE: IMMEDIATE RETIREMENT OF PERMANENT SECRETARIES.
I am directed to refer to the recent press release on the above subject matter (copy attached) and humbly request you to issue appropriate letters to the following permanent secretaries who were retired by His Excellency, the Governor of Imo State, Owelle Rochas Okorocha (OON). They are:
1. ----
2. ----
3. ----
4. ----
5. O.P. Ufomadu”
The Chairman of the Imo State Civil Service Commission was informed in Exhibit D that some Permanent Secretaries, including the Claimant, have been retired by the 1st Defendant and he was directed to issue letters to that effect to the affected Permanent Secretaries. The Claimant’s retirement letter was issued to him subsequently. It is clear that the action directed or ordered by the 1st Defendant, as disclosed in the content of Exhibits C4 and D, was the retirement of the Claimant from the Imo State Civil Service. The letters did not mention the removal from office as Permanent Secretary. Without any doubt, the Claimant was retired from the Imo State Civil Service and his retirement was taken and directed by the 1st Defendant. The crucial question arising from the retirement of the Claimant is whether the 1st Defendant, the Governor of Imo State, can retire a civil servant from the Imo State Civil Service.
The Defendants counsel argued that the 1st Defendant appointed the Claimant a Permanent Secretary from his position as a Director in the Imo State Civil Service and validly retired the Claimant in line with Section 208 of the 1999 Constitution. Counsel also argued that it is an aberration to impose limitation to authority or power granted by the Constitution or statute to any person to perform an act. The said Section 208 of the 1999 Constitution referred to by the Defendants’ counsel provide:
“(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the Governor of the State.
(2) The offices to which this section applies are, namely-
(a) Secretary to the Government of the State;
(b) Head of the Civil Service of the State;
(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated; and
(d) any office on the personal staff of the Governor.
(3) An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of any State or of the Federation.
(4) In exercising his powers of appointment under this section, the Governor shall have regard to the diversity of the people within the State and the need to promote national unity.
(5) Any appointment made pursuant to paragraphs (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office:
Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.”
The power granted to the 1st Defendant in the above provision is the power of appointment and removal from office of Permanent Secretary among others. It was pursuant to this provision that the 1st Defendant appointed the Claimant in May 2011 as a Permanent Secretary. The Defendants counsel has contended that the 1st Defendant retired the Claimant from the Civil Service pursuant to the power of removal conferred on the 1st Defendant in the above provision of the constitution. It must be emphasized that the Claimant’s appointment as a Permanent Secretary did not take him away from the Civil Service or change his status as a civil servant. The appointment was still an appointment in the Imo State Civil Service. Section 208(1) empowers the 1st Defendant to appoint persons into office of Permanent Secretary and also power to remove persons so appointed from any such office. It is clear from the provision that the Governor who made the appointment can also remove the person so appointed from the same office. Therefore, the power of the 1st Defendant under the Section to remove Permanent Secretary is limited to removal from the office of Permanent Secretary and no more. In this case however, the Claimant was retired from the civil service altogether by the 1st Defendant. Other than the power of removal from the office of Permanent Secretary, Section 208 (1) did not grant any power to the Governor to retire civil servants from service. In the result, Section 208(1) did not cover or sanction the action of the 1st Defendant in the retirement of the Claimant from the Imo State Civil Service.
Let me also say that nothing in the provision of Section 208(1) of the 1999 constitution suggests that the 1st Defendant has power to retire a Permanent Secretary from service without recourse to Civil Service Commission or the Civil Service Rules. By the Claimant’s appointment letter as Permanent Secretary, it is obvious he was still in the Imo State Civil Service in his appointment as a Permanent Secretary. Being a civil servant, the Claimant’s employment is regulated by the Civil Service Rules or Regulation made pursuant to the provisions of Section 197 of the 1999 Constitution. It is now trite that employment under the Civil Service Rules is employment protected by statute. See ATTORNEY-GENERAL, CROSS RIVER STATE vs. OKON (2007) All FWLR (Pt.395) 370; OKEME vs. CIVIL SERVICE COMMISSION, EDO STATE (2001) FWLR (Pt.36) 873; OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt.415) 1807. Therefore, the Claimant’s employment in the Imo State Civil Service has statutory flavour.
This fact was constitutionally recognized when it was provided thus in Section 208 (5) of the 1999 Constitution:
“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.”
By this provision, the appointment of the Head of Service of the State and Permanent Secretary, having been appointed from the public service of the state, are not at the pleasure of the Governor. These appointments do not cease when the Governor ceases to hold office but the officers are entitled to return to the Civil Service when the Governor ceases to hold office. It is thus clear that if for whatever reason the Claimant is removed from office as Permanent Secretary by the 1st Defendant, he should be returned to the public service of Imo State. Being a Civil servant all the while the Claimant held office as Permanent Secretary, the Constitution has further settled the issue of which authority has the responsibility to discipline him. Section 197 (1) of the 1999 Constitution provides that
“There shall be established for each State of the Federation the following bodies, namely-
(a) State Civil Service Commission
(b) ----------
Section 2 (1) and (2) of part II of the Third Schedule 1999 Constitution provide:
2. Civil Service Commission of a State
(1)The Commission shall have power, without prejudice to the powers vested in the Governor and the State Judicial Service Commission, to-
(a) appoint persons to offices in the State civil service; and
(b) dismiss and exercise disciplinary control over persons holding such offices.
(2)The Commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of heads of divisions of Ministries or of departments of the Government of the State as may from time to time be designated by an order made by the Governor except after consultation with the head of the civil service of the State.
Then, Section 202 of the 1999 Constitution provides as follows:
"In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person."
The combined effect of the above provisions of the constitution is that the matter of discipline, or dismissal or retirement of the Claimant from the Imo State Civil Service is the responsibility of the Imo State Civil Service Commission and this responsibility is not subject to the direction and control of any authority or person. Although Section 208 (1) gave power to the Governor to appoint persons to hold or act in the offices to which the section applies and to remove persons so appointed from any such office, the 1st defendant cannot, while removing the claimant as permanent secretary, retire him altogether from the civil service. As a civil servant whose appointment is not at the pleasure of the Governor, the legislation regulating the appointment and removal or retirement from service is found in the Civil Service Rules. In this case, it was the 1st defendant who retired the claimant and not the Civil Service Commission. Although the retirement letter was written by the Commission, it only conveyed to the claimant the 1st defendant’s decision to retire him from service. It is therefore obvious that the 1st defendant does not have power to retire a civil servant without recourse to the Civil Service Commission or the Civil Service Rules. I find that the Claimant’s retirement was not done by the proper authority. In NAWA vs. ATTORNEY GENERAL, CROSS RIVER STATE (2007) LPELR -8294 (CA), a case whose facts are not too dissimilar from this instant case, the Court of Appeal, per JEAN OMOKRI, J.C.A held as follows:
"Though the Governor of a state has the power to appoint Civil Servants, he cannot remove such civil servant without following due process stated in the civil service rules and regulations. If the Governor wants to retire a civil servant for a just cause, then he must make a recommendation to that effect to the Civil Service Commission of the State which will do so in compliance with the law. Clearly, it is not the intention of the legislator that under Section 208(1) of the 1999 Constitution, a Governor can just retire a permanent secretary without any just cause.”
His Lordship further held:
“In a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. See sections 197, 202 and Part II paragraph 2(2) of the 3rd Schedule to the 1999 Constitution. Presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power.”
The words of His Lordship represent the position of the law on this issue. See also the case of ATTORNEY-GENERAL, CROSS RIVER STATE vs. OKON (supra) which is also on all fours with the facts of this case. I must add that if the Claimant is to be retired compulsorily from the civil service of Imo State, then it must be done in accordance with the Civil Service Rules and Regulations. Beside the facts that it is the Civil Service Commission who has the responsibility to compulsorily retire or even dismiss the Claimant from service for genuine reasons, such compulsory retirement or dismissal must be on the basis of disciplinary action for an offence or misconduct. The compulsory retirement imposed on the Claimant in this case suggests that he was being disciplined for the commission of any crime or misconduct. However, is there any evidence that he committed any crime, offence or misconduct for which he was compulsorily retired? Even the Claimant’s retirement letter did not mention that the claimant was retired from service for any alleged misconduct. The letter merely conveyed the retirement to the Claimant. In effect, the Claimant was retired from service before his retirement age and the reason was not on disciplinary ground. Without any doubt, the Claimant’s retirement from service is a nullity.
The Claimant averred in paragraph 7 of his statement of facts that he was born 14/6/1960 and he will attain 60 years of age in 2020. He also averred that he has only served for 31 years 5 months at the time he was retired and he will be due for retirement in 2017 when he would have served the mandatory service of 35 years. The Defendants admitted these facts in paragraph 1 of the statement of defence. It is thus obvious that the Claimant was retired before his retirement age. I have also found that the 1st Defendant has no power to retire a Permanent Secretary or any civil servant for that matter under Section 208 of 1999 Constitution. Obviously, the Claimant was not retired in accordance with the civil service rules and regulations and neither was the proper procedure for the compulsory retirement of the Claimant followed in this matter. The Claimant is a civil servant, therefore, he cannot be retired at the pleasure of the Governor or without compliance with the Imo State Civil Service Rules and Regulations which governed his appointment. See NAWA vs. ATTORNEY GENERAL, CROSS RIVER STATE (supra) and ATTORNEY-GENERAL, CROSS RIVER STATE vs. OKON (supra)
Since the Defendants did not comply with the procedure provided by the civil service rules and regulations of the Imo State, their action in the purported retirement of the Claimant is of no effect. The retirement of the Claimant from the Imo State Civil Service is hereby set aside. Except reliefs (i) and (v) which are refused, all other reliefs sought by the Claimant are granted.
The Claimant sought to be reinstated as Permanent Secretary in reliefs (i) and (v). As I have stated earlier, it is the 1st Defendant who can make the appointment of Permanent Secretary and remove the person from same office. Although the 1st Defendant cannot remove or retire the Claimant from the Civil Service, the action of the 1st Defendant can be taken to be removal of the Claimant from the office of Permanent Secretary. It is my view that this court cannot insist on the 1st Defendant retaining the Claimant as a Permanent Secretary. In the circumstance, it is appropriate to fall back to the provision of Section 208(5) of the Constitution. The Claimant is to be reinstated into the Civil Service and placed in the appropriate position he ought to occupy in the Civil Service.
For avoidance of doubt, the court makes the following orders:
i. The retirement of the Claimant from the Imo State Civil Service is
hereby set aside.
ii. The Claimant is re-instated into the Imo State Civil Service effective
from 30th May 2013 and he is to be placed in the position he is expected to be on returning into the Civil service from the position of Permanent Secretary.
iii. The Defendants are ordered to pay the Claimant all his salaries,
emoluments, allowances, benefits and privileges accruing to him from May 2013.
iv. The Defendants, their servants or agents are restrained from
compulsorily retiring the Claimant before October 2017 when he would have put in 35 years of service.
I also award cost of N100,000.00 in favour of the Claimant.
Judgment is entered accordingly.
Hon. Justice O. Y. Anuwe
Judge