IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 25th April 2023                                                 SUIT NO: NICN/ABJ/149/2012

 

Between:             

 

Mr. A. A. Alabi                                                                      -                       Claimant

 

And

 

1.      Federal Civil Service Commission

2.      Accountant General of the Federation                                        Defendants

3.      Nigerian Correctional Services (NCoS                                                                  

 

Representation:

J. C. Njikonye SAN, with him, I. A. Nnana for the Claimant

S. T. Bana for the 2nd Defendant

 

JUDGMENT

By a letter dated 25th October 2006, the Claimant was retired from service by the 1st Defendant with effect from 30th January 2004. The Claimant received the retirement letter in January 2007. Being aggrieved with the retirement, the Claimant first instituted this suit before the Federal High Court in 2007. The suit was subsequently transferred to this court in 2012 after which the Claimant filed a Complaint on 19th June 2012 before this court. The matter went on to trial and judgment was delivered on 26th July 2013. In the judgment, this court, per Hon. Justice O.A. Shogbola, held that the Claimant’s suit was statute barred by the effect of Section 2(a) of the Public Officers Protection Act, and accordingly dismissed the suit of the Claimant. The Claimant appealed the decision to the Court of Appeal, and judgment was delivered in the appeal on 30th March 2022. The Court of Appeal set aside the decision of this Court and ordered that the suit be retried by another judge of this court. It was based on the order of the Court of Appeal the suit was assigned to me to hear and determine it on its merits.

 

When the suit started deno novo before me, the Claimant sought leave to amend the Complaint and the other originating processes. Leave was accordingly granted to the Claimant on 4th July 2022. In the amended Complaint, the Claimant sought the following reliefs against the Defendants:

1.         A Declaration that the purported letter of retirement of the Claimant by the 1st Defendant with Reference No. 6231/S.5/S.5/VOLII/72/87 dated 25th October, 2006 was wrongful, null and void, unjustifiable and of no legal effect.

2.         A Declaration that the 1st Defendant cannot vide the Letter of Retirement with Reference No. 6231/S.5/S.5/VOLII/72/87 dated 25th October, 2006 retire the Claimant from the Federal Civil Service, except upon recommendation of the 2nd Defendant, if any, indicting the Claimant of any culpability in the overtime payment giving rise to the query issued by the Comptroller General of the 3rd Defendant to the Claimant.

3.         A Declaration that the subject matter of the query issued by the Comptroller General of the 3rd Defendant vide letter dated 30th day of January, 2004, consequent upon which the 2nd Defendant through its Inspectorate Division investigated and exonerated the Claimant could not have given rise to sufficient ground to retire the Claimant, the Claimant having been exonerated.

4.         An Order of perpetual injunction restraining the 2nd Defendant, its agents, privies, assigns or howsoever described, from acting or carrying into effect the content of the letter of retirement issued by the 1st Defendant to the Claimant with Reference No. 6231/5.5/S.S/VOL.II/T2/87 dated 25th of October, 2006.

5.         A Declaration that the Claimant’s retirement date was 18th January, 2018 being his mandatory age of retirement upon attainment of 60 years pursuant to Civil Service Rules.

6.         A Declaration that the Claimant’s retirement on 18th January, 2018 upon attainment of 60 years mandatory age of retirement, pursuant to Civil Service Rules was without loss of promotion, privileges, entitlements and leave grants accruable to the staff of the 2nd Defendant so as to be at par with the Claimant’s colleagues.

7.         An Order of Court mandating the Defendants to calculate and pay the Claimant his leave grants and other allowances from 1st February, 2007 to 18th January, 2018.

8.         An Order of Court mandating the Defendants to calculate and pay the Claimant his gratuity and pension calculated to 18th January, 2018 being his date of retirement.

9.         An Order of this Court mandating the Defendants to pay to the Claimant the sum of N32,848,940.24 being salary arrears, leave Grants, allowances from 1st February, 2007 to 18th January, 2018 which were withheld/suspended by the Defendants upon his purported retirement on 1st February, 2007 to date taking into cognizance the Claimant’s promotion, privileges, entitlements and leave grants accruable to the staff of the 2nd Defendant so as to put the Claimant at par with the Claimant’s colleagues.

10.       Pre-judgment interest at the rate of 18% per annum on the salary arrears of N32,848,940.24 from 1st January, 2018 till date of judgment.

11.       N400,000,000.00 general damages for wrongful retirement of the Claimant.

12.       Post judgment interest at the rate of 10% per annum on total judgment sum from date of judgment until judgment debt is fully liquidated.

13.       Cost of action.

 

The Claimant testified in proof of this claims on 12th October 2022. The facts of the Claimant’s case, as pleaded by him in the statement of facts and narrated in his evidence, are that he was employed by the 1st Defendant on 3rd March 1987 and he was seconded to the office of the Head of the Head of Service Training Centre, Ilorin. In the year 2000, he was posted to the National Planning Commission, Abuja. In 2003, he was further posted to the 3rd Defendant’s Headquarters Abuja and Federal Ministry of Industry. During his employment, he earned promotions and the last one was his promotion to the post of Assistant Chief Accountant with effect from 1st January 2000. In all his postings, he was never queried except during his secondment to the 3rd Defendant. He received a query from the Comptroller General of Prisons alleging that he used his name to prepare a voucher for payment of overtime to staff of the 3rd Defendant. He responded to the query wherein he explained that he was not culpable of any wrongdoing. The office of the Comptroller General of Prisons invited the local Independent Corrupt Practices and other Related Offences Commission [ICPC] to investigate the allegation against him and the office of the Accountant General of the Federation also sent its Inspectorate Division to investigate the allegation. The report of both the ICPC and the Inspectorate Division exonerated him from any wrongdoing.

 

On 30th May 2007, the office of the Permanent Secretary, Federal Ministry of Industry forwarded a retirement letter dated 25th October 2006 to him. He was retired from the Federal Civil Service retroactively from January 2004. The reason given in the letter for his retirement is that the 1st Defendant, in a meeting of 18th July 2006, considered the case of payments of overtime to staff of the 3rd Defendant without due process and that he was unable to clear himself. The Claimant said that there was no time the 1st Defendant issued him query and he was not invited to make any presentation to the 1st Defendant in respect of the allegation made against him. The 1st Defendant also disregarded the report of the ICPC and the 2nd Defendant’s Inspectorate Division but went ahead to retire him from service. The Claimant explained that he did not do any wrong in the issue relating to the overtime payment and that the overtime payment in question was done in accordance with accounting practice and it received all requisite approvals. Using his name to raise voucher does not constitute misconduct as to warrant his retirement.

 

The Claimant further stated that his retirement was anchored on malice and bad faith. His employment enjoyed statutory flavour and his employment cannot be terminated summarily by the 1st Defendant. He was wrongfully retired from service and wrongfully denied promotions. Under the Civil Service Regulations, he would have been promoted to Chief Accountant by January 2004 and to Assistant Director by January 2007. By January 2011, he would have been promoted to Deputy Director and by January 2015, he would have been promoted to the position of Director. These promotions come with their salaries and entitlements. He attained 60 years of age on 18th January 2018 and he would have retired on that date as a Director. The withholding of his salaries and entitlements was wrong and the treatment meted out to him by the Defendants was inhuman and he had to endure hardships and stress and emotional trauma. The Claimant tendered a number of documents in evidence which were admitted and marked Exhibits PWA, PWB, PWC, PWD, PWD1, PWD2, PWD3, PWD4, PWE, PWF, PWG and PWH.

 

When this matter started deno novo before me, only the 2nd Defendant put up appearance in the suit on two occasions, those were in the proceedings of 4th July 2022 and 12th October 2022. None of the Defendants filed any amended statement of defence to join issues with the Claimant on his amended Complaint and statement of facts. The Defendants, or any counsel on their behalf, did not appear in court to cross examine the Claimant and they did not call any witnesses or evidence in defence of the suit. Upon being satisfied that hearing notices were consistently served on the Defendants yet they refused to attend court, I was constrained to foreclose the Defendants from defending the suit. The Claimant’s final written address was also served on the Defendants but the Defendants refused and failed to file final written addresses.

 

I have read the final written address of counsel of the Claimant. I do not see any reason to rehash its contents here. Arguments proffered by learned counsels in the Claimant’s written addresses have been duly considered and evaluated. Reference will be made to them as it becomes necessary in the course of this judgment.

 

COURT’S DECISION

I have earlier mentioned that the Defendants did not defend this suit. The facts pleaded by the Claimant in his amended statement of facts have not been traversed. The evidence adduced by the Claimant has also not been controverted or challenged. The Defendants were given the opportunity to be heard in the matter but they chose to allow the matter proceed to judgment without a defence to the suit. The clear indication is that Defendants have no defence to the claims of the Claimant. This does not however entitle the Claimant to automatic judgment. This is in view of the claims sought by the Claimant. The main claims of the Claimant in this suit are declaratory reliefs, particularly reliefs 1, 2, 3, 5 and 6 of the Amended Complaint. The law places a heavy burden of proof on the Claimant in respect of these reliefs. In ADDAH vs. UBANDAWAKI [2015] 7 NWLR [Pt. 1458] 325, the Supreme Court held thus:

“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy, in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlements to the declaration by his own evidence. The weakness of the defendant’s case does not assist the plaintiff’s case. He swims or sinks with his own case”.

 

See also the Supreme Court in ZACCALA v. EDOSA [2018] 6 NWLR [Pt. 1616] 528 at 547; DUMEZ NIG. LTD vs. NWAKHOBA [2008] 18 NWLR [Pt. 1119] 361. Therefore, notwithstanding the failure of the Defendants to defend the suit, the Claimant should be seen to have proved his case before he will be entitled to the reliefs he sought.

 

The first relief sought by the Claimant is for this court to declare that the letter of retirement issued by the 1st Defendant dated 25th October 2006 was wrongful, null and void, unjustifiable and of no legal effect. The said letter of retirement is Exhibit PWE. In his evidence, the Claimant stated that on 30th May 2007, the office of the Permanent Secretary, Federal Ministry of Industry forwarded a retirement letter dated 25th October 2006 to him. By the letter, he was retired from the Federal Civil Service retroactively from January 2004. The Claimant also said the reason given in the letter for his retirement is that the 1st Defendant, in a meeting of 18th July 2006, considered the case of payments of overtime to staff of the 3rd Defendant without due process and that he was unable to clear himself. One of the complaints of the Claimant against the retirement is that there was no time the 1st Defendant issued him query and he was not invited to make any representation to the 1st Defendant in respect of the allegation made against him before he was given the retirement letter. Earlier in his evidence, the Claimant said the 1st Defendant was his employer who seconded him to the 3rd Defendant. It was while in the 3rd Defendant he was given a query by the Comptroller General of the 3rd Defendant alleging he used his name to prepare a voucher for payment of overtime to staff of the 3rd Defendant. The Claimant’s employment letter and the gazette of his employment are Exhibits PWB, PWC and PWD. The Claimant also referred to the Civil Service Regulation or Rules and said his employment enjoyed statutory flavour and it cannot be terminated summarily as done by the 1st Defendant.

 

By Section 153 [1]d] and paragraphs 10 and 11 of the Third Schedule of the CFRN 1999, the        1st Defendant is the body with the responsibility to appoint persons to offices in the Federal Civil Service and exercise disciplinary control over persons in the Federal Civil Service. The 1st Defendant is also empowered to make Rules for the purpose of discharging its functions. See Section 160 [1] of the CFRN 1999. In pursuance to this power, the 1st Defendant made the Public Service Rules to regulate employment in the 1st Defendant. The Public service Rules has been judicially recognized as a subsidiary legislation. See FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA vs. MAIWUYA (2013) All FWLR (Pt. 677) 753 at 762. Thus, it conferred the employment to which it regulates an employment protected by statute. See NAWA vs. ATTORNEY-GENERAL, CROSS RIVER STATE [2008] All FWLR [Pt. 401] 807 at 828; OKEME vs. CIVIL SERVICE COMMISSION, EDO STATE (2001) FWLR (Pt. 36) 873. Accordingly, it is not in doubt that the Claimant’s employment with the 1st Defendant was regulated by the PSR. The Claimant’s employment is therefore protected by statute and the employment cannot be terminated without strict compliance with the procedure set out in the PSR. The law is settled that where an employee whose employment is protected by statute is removed from office in violation of the statutory procedure or in the manner not in line with the applicable rules, the removal is null and void and liable to be set aside. In OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) All FWLR (Pt. 497) 1 at 46 to 47, the Supreme Court held thus:

 “When an office or employment has a statutory flavour in the sense that its conditions of service are provided for by the statute or regulations made there under, any person in that office or employment enjoy a special status over and above the ordinary master and servant relationship. In the matter of discipline of such an employee, the procedure laid down by such statute must be fully complied with. If not, any decision affecting the right or reputation or tenure of office of that employee will be declared null and void. When a statute has conferred on anybody the power to make decisions affecting individual, the court will not only require the procedure prescribed by the statue to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Where contract of service enjoys statutory protection, the latter can only be terminated in the manner prescribed by the governing statutory provisions, a breach of which renders the act ultra vires and void. The contract cannot be discharged on the agreement of the parties without compliance with the enabling statutory provisions.”

 

The retirement of the Claimant, as seen in Exhibit PWE, is on grounds of discipline. It implies that the Claimant was retired compulsorily as punishment before the date he was ordinarily due to retire from service. The act alleged against the Claimant for which he was retired in Exhibit PWE was that he collaborated with other officers of the Prisons service to execute payment of overtime to the tune of N8.5 million without following due process. Now, the complaint of the Claimant in this suit is that the 1st Defendant never issued him query in respect of this allegation and he was not invited to make any representation to the 1st Defendant in respect of the allegation made against him before he was found culpable and retired from service. The Defendant did not dispute these averments of the Claimant and there is no contrary evidence to disprove the allegations of the Claimant. I will therefore take the facts that the 1st Defendant did issue the Claimant query in respect of the allegation for which he was retired from service and he was not invited to make any representation to the 1st Defendant on the allegation as established.

 

The disciplinary procedure in Rules 030302 to 030307 of the PSR include issuance of written query to the staff stating the grounds on which he is to be disciplined and requested to make a written representation in defence of the allegations. The procedure also includes giving opportunity to the staff to appear before the investigative panel or committee to defend himself. The 1st Defendant did not observe this procedure. Consequently, the retirement of the Claimant from service by the 1st Defendant vide the letter dated 25th October 2006 was unlawful, ultra vires, null and void.

 

The Claimant also testified that after the Comptroller-General of Prisons issued him a query alleging that he used his name to prepare a voucher for payment of overtime to staff of the 3rd Defendant, the office of the Comptroller-General of Prisons invited ICPC to investigate the allegation against him and the office of the Accountant General of the Federation also sent its Inspectorate Division to investigate the allegation. The Claimant said the report of both the ICPC and the Inspectorate Division exonerated him from any wrongdoing. To this effect, the Claimant sought in relief 3 a declaration that the subject matter of the query issued by the Comptroller General of the 3rd Defendant could not amount to sufficient ground to retire him as the 2nd Defendant, through its Inspectorate Division, investigated and exonerated him of the allegation. The Defendants did not also traverse these averments of the Claimant or challenge the evidence of the Claimant to the effect that Inspectorate Division of the 2nd Defendant investigated and exonerated him of the allegation contained in the query issued by Comptroller General of the 3rd Defendant. Curiously, it was on the same allegation the 1st Defendant, without conducting any independent or further inquiry, found the Claimant guilty and retired him from service. In view of the fact that the Claimant was cleared and exonerated by the Inspectorate Division of the 2nd Defendant after investigating the allegation, the 1st Defendant who did not conduct any investigation on the allegation against the Claimant does not have any reason to find the Claimant guilty of the allegation or to punish him by retiring him from service. From the evidence adduced by the Claimant, I find it just to make the declaration he sought in relief 3 of the amended Complaint.

 

The Claimant sought in relief 2 a Declaration that the 1st Defendant cannot issue the letter of retirement dated 25th October 2006 retiring him from the employment of the 1st Defendant except upon the recommendation of the 2nd Defendant. What that Claimant claim in this relief is that the 1st Defendant cannot retire or terminate his employment except upon the recommendation of the 2nd Defendant. I have examined the pleadings and evidence of the Claimant but I find that he did not plead or give evidence to the effect that the 1st Defendant cannot retire or terminate his employment except upon the recommendation of the 2nd defendant. The claimant did not prove the declaration he sought in relief 2.

 

The Claimant said he attained 60 years of age on 18th January 2018 and that was the day he would have retired mandatorily from the service of the 1st Defendant. On this basis, he sought the declaration in relief 5 to the effect that his retirement date from service was 18th January 2018. The Claimant’s averment that he attained 60 years of age on 18th January 2018 was not traversed by the Defendants.

 

By Rule 020810 of the PSR, the compulsory retirement age in the Civil Service is 60 years of age or 35 years of pensionable service, whichever is earlier. Since the claimant’s retirement through the letter of 25th October 2006 has been found in this judgment to be unlawful and void, the implication is that it is set aside. Consequently, the claimant is taken to have remained in the service of the 1st defendant until when he lawfully retired from service, which was on 18th January 2018. Furthermore, from the date of his unlawful retirement, the claimant is entitled to all promotions, salaries privileges and entitlements which ought to be accorded and given to him, up to the time of his mandatory retirement, had the 1st defendant not unlawful and prematurely retired him. For this reason, I find merits in reliefs 7, 8 and 9 sought by the claimant.

 

Let me observe however that the claims in relief 7 and 9 appear to be in conflict. The sum claimed relief 9 comprises of salary arrears, leave grant and allowances from 1st February 2007 to 18th January 2018. The claim in relief 7 is for an order to the Defendants to compute and pay to the Claimant his leave grants and other allowances. The Claimant appeared to have done the computation in relief 9. Therefore, both reliefs are at variance and cannot both the granted.

 

The Claimant gave evidence to show that he suffered hardships and emotional trauma as a result of the actions of the Defendants. The Claimant has been out of work since 2007 and this was a result of his unlawful retirement by the 1st Defendant. The Claimant ought to have retired in 2018 but his premature retirement denied him his salaries and entitlements as far back as January 2007. The hardships the Claimant was made to go through all the years before the date of his mandatory retirement can be better imagined.

 

I have examined the claims of the Claimant in the light of the evidence adduced by the Claimant in proof of his claims. From the totality of the evidence adduced by the Claimant, I find merit in the Claimant’s case. Besides the fact that the Claimant’s suit is not defended, I also find that the Claimant has proved his case. Save reliefs 2, 7 and 10 which are not granted, reliefs 1, 3, 4, 5, 6, 8, 9, 11 and 12 sought by the Claimant are granted in the terms specified below. Specifically, I make the following declarations and orders:

1.   It is declared that the letter of retirement of the Claimant by the 1st Defendant with Reference No. 6231/S.5/S.5/VOLII/72/87 dated 25th October, 2006 was wrongful, null and void, unjustifiable and of no legal effect.

2.   It is declared that the subject matter of the query issued by the Comptroller General of the 3rd Defendant vide letter dated 30th day of January, 2004, consequent upon which the 2nd Defendant through its Inspectorate Division investigated and exonerated the Claimant could not have given rise to sufficient ground to retire the Claimant, the Claimant having been exonerated.

3.   An Order of perpetual injunction is made restraining the 2nd Defendant, its agents, privies, assigns or howsoever described, from acting or carrying into effect the content of the letter of retirement issued by the 1st Defendant to the Claimant with Reference No. 6231/5.5/S.S/VOL.II/T2/87 dated 25th of October, 2006.

4.   It is declared that the Claimant’s retirement date was 18th January, 2018 being his mandatory age of retirement upon attainment of 60 years pursuant to Civil Service Rules.

5.   It is declared that the Claimant’s retirement on 18th January, 2018 upon attainment of 60 years mandatory age of retirement was without loss of promotion, privileges, entitlements and leave grants accruable to the claimant.

6.   An Order is made directing the Defendants to calculate and pay to the Claimant his gratuity and pension calculated up to 18th January, 2018, being his date of retirement.

7.   An Order is made directing the Defendants to pay to the Claimant the sum of N32,848,940.24 being his salary arrears, leave grants and allowances from 1st February 2007 to 18th January 2018, taking into cognizance the Claimant’s promotions, privileges, entitlements and leave grants accruable to him.

8. The sum of N20,000,000 is awarded to the Claimant as general damages for his wrongful retirement by the 1st Defendant.

9.  Cost of N2,000,000 is also awarded in favour of the Claimant.

 

The sums in items 6, 7, 8 and 9 above must be paid to the Claimant within 30 days from today. In the event of default, the sums shall attract interest at the rate of 10% per annum from the date of default until such a time the Defendants fully pay the judgment sum to the Claimant.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge