IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THEABUJA JUDICIAL DIVISION HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR

PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

 

DATE: 21 MAY 2024            SUIT NO. NICN/ABJ/321/2023

 

 

BETWEEN

Alo William Nwankwu      -                                               Claimant

 

 

AND

1. Head Of Civil Service of the Federation

2. Attorney General of the Federation    -                       Defendants

 

 

REPRESENTATION

FemiAdedeji, with MissAsmau Yunusa, for the claimant.

T. D. Agbe, Assistant Chief State Counsel, for the 1st defendant.

Mrs Maimuna Lami Shiru, Director Civil Litigation and Public Law, with Mrs Habibatu U. Chime, Deputy Director Civil Litigation and Public Law and Miss Oyebisola Bajulaiye, Assistant Chief State Counsel, for the 2nd defendant.

 

JUDGMENT

 

INTRODUCTION

 

1. The claimant filed this suit on 10 November 2023 vide an originating summons. The originating summons is brought pursuant to Order 2 Rule 17 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, section 6(6)(b) of the 1999 Constitution and under the inherent jurisdiction of the Court.

 

2. The claimant submitted three questions for determination, namely:

(1) Whether Tenure Policy in the Federal Civil Service remains suspended having regard to the subsisting directive of the Federal Government (President) as communicated via the circular dated 20th July, 2016 with reference No. HCSF/428/S.1/139.

(2) Whether the discriminatory implementation of the Tenure Policy in the Federal Civil Service of the Federation is not illegal as it violates the claimant right to freedom from discrimination guaranteed by section 42 of the Constitution of the Federal Republic of Nigeria.

(3) Whether the provisions of Rule 020909 of the Public Service Rules, 2021 which became operative with effect from 27th July, 2023 which seeks to retroactively and discriminatorily retire the claimant from the Federal Civil Service before the attainment of the retirement age of 60 years or 35 years of service amounts to an unfair labour practice and a gross violation of section 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

 

 

3. The claimant then prayed for six reliefs, namely:

(1) A DECLARATION that the Respondents lack the requisite powers to reintroduce the tenure policy into the Civil Service of the Federal Government of Nigeria, same having been suspended by virtue of the directive of the president of the Federal Republic of Nigeria as communicated in the circular dated 20th July, 2016 with reference No. HCSF/ 428/S.1/139.

(2) DECLARATION THAT the discriminatory implementation of tenure policy in the Federal Civil Service of the Federation is illegal as it violates the Claimants’ right to freedom from discrimination guaranteed by Section 42 of the 1999 Constitution of the Federal Republic of Nigeria?

(3) A DECLARATION that by virtue of Rule 020908 of the Public Service Rules 2021, the claimant can only be compulsorily retried upon attainment of the age of 60 years or 35 years in the civil service of the federation.

(4) AN ORDER of PERPETUAL INJUNCTION restraining the Respondents whether by themselves, their agents, privies and servants from further implementing tenure policy in the federal civil service same having being suspended via the CIRCULAR DATED 20th JULY, WITH REFERENCE NO: HCSF/428/S.1/139.

(5) AN ORDER of PERPETUAL INJUNCTION restraining the Respondents whether by themselves, their agents, privies and servants from further subjecting the Claimant to the discriminatory practice of tenure police.

(6) AND any order or Orders this Honourable Court may deem fit to make in the circumstance of this case.

 

4. The originating summons is supported by an affidavit, with five exhibits, and a written address.

 

5. Accompanying the originating summons was a motion on notice also filed on 10 November 2023 mainly praying for an interlocutory order restraining the defendants from implementing the Tenure Policy pending the determination of this suit. This motion was not moved. And so it is deemed abandoned, and in any event overtaken by the fact of this judgment. I so rule.

 

6. In response, the defendants separately entered appearance and filed their defence processes. The 2nd defendant filed first. His counter-affidavit and written address were filed on 19 December 2023.

 

7. The 1st defendant on his part filed his counter-affidavit, with Exhibits HOS 1, 1A, 1B, 2, 3A, 3B, 3C, 4A, 4B, 4C and 5, and the supporting written address on 11 January 2024.

 

8. The claimants response was that on 13 February 2024, he filed a further and better affidavit in support of the originating summons and a reply on points of law.

 

 

THE SUBMISSIONS OF THE CLAIMANT

 

 

9. The claimant framed the issues for determination in terms of the three questions he posed.

 

10. For question/issue (1), whether the tenure policy remains suspended given the circular dated 20 July 2016 with Ref. No. HCSF/428/S.1/139, the claimant answered in the affirmative; and submitted that the subsisting directive (as contained in Exhibit 4) of the President of the Federal Republic Nigeria who, for all intent and purposes, remains the principal of the Head of Service of the Federation, Agencies and Ministries in the Federal Republic of Nigeria, remains enforceable until same is set aside by another directive issued by the President. That since the 1st defendant cannot overrule the President of the Federal Republic of Nigeria (his principal), it therefore becomes elementary that the 1st defendants directive reintroducing tenure policy via the circular of 27 July 2023 is illegal and, therefore, unimplementable. That with the benefit of hindsight, it is trite that the 1st defendant; HEAD OF CIVIL SERVICE OF THE FEDERATION remains subject to the directive of its principal, the President of the Federal Republic of Nigeria, and cannot take any decision capable of overriding or conflicting with the directive already issued by the president. This is so because he derives the totality of his powers from the magnanimity of the President of the Federal Republic of Nigeria.

 

11. The claimant went on that putting the above submission in perspective, on 20 July 20 2016, the 1st defendant communicated the directive of Mr President to suspend the tenure policy in the following words:

SUSPENSION OF THE TENURE POLICY IN THE FEDERAL CIVIL SERVICE With reference to letter No. SH/COS/100/A/1462 dated 17th June, 2016, I write to convey Mr. Presidents directive that tenure policy in the Federal Civil Service ls Suspended with immediate effect.

 

12. That the law remains that when interpreting any legal document such as Exhibit 4, the cardinal rule of interpretation of legal instruments, documents or agreements is the presumption that parties intended what they said, referring to AG, Nasarawa State v. AG, Plateau State [2012] LPELR-9730(SC). That upon assurance that the party means what it says, it is imperative that when words are clear and unambiguous it must be accorded its ordinary meaning, citing International Energy Insurance Plc v. Sterling Bank [2021] LPELR- (incomplete citation) and Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt.) Board & anor [2019] LPELR-47355(CA). That in the instant case, the directive of the President as contained in Exhibit 4 is clear as to the intention to immediately suspend the application of tenure policy in the Civil Service. The words are clear and unambiguous, and so the Court should give it the ordinary meaning and hold that the tenure policy in the Federal Civil Service stands suspended.

 

13. More so, that the age long principle that an agent is duty bound to avoid conflict of interest in discharging his obligations to his principal makes it totally impossible for the 1st defendant to undermine the directive of the President, citing Aribisala Properties Ltd v. Adepoju [2015] LPELR-25589(CA) and Nasr & anor v. Rossek [1973] LPELR-1946(SC). That the decision of the 1st defendant to reintroduce the tenure policy notwithstanding the clear directive of his principal (the President) suspending the policy is a clear case of disloyalty, urging the Court to so hold.

 

14. The claimant proceeded to submit that the law is settled, in all cases where there is a breach of a fiduciary duty and/or disloyalty which has resulted, as in the case at hand, in an unconscionable tenure policy, it will be inequitable that the policy should be allowed to stand. That the claimant complaining of the policy is entitled, as requested, to be relieved against it in equity and, as incidental to the relief, he may ask that the document embodying the policy should be set aside, referring to the case of Armstrong v. Jackson [1917] 2 KB 822 at pp. 825 - 826. Furthermore, that the Court, in the exercise of its equitable jurisdiction, has an overriding power to set aside any unconscionable policy in the interest of justice and fairness.

 

15. The claimant then urged the Court to resolve issue (1) in his favour and hold that the tenure policy in the Federal Civil Service stands suspended.

 

16. On question/issue (2), whether the discriminatory implementation of the tenure policy in the Federal Civil Service is not illegal as it violates the claimants right to freedom from discrimination guaranteed by section 42 of the 1999 Constitution, the claimant submitted that by section 42 of the 1999 Constitution, the fundamental right of every person to freedom from discrimination is guaranteed. That equality of opportunity and treatment in employment and occupation is a germane aspect of the overall principle of equality, which is now a universal norm. That it is one of the most fundamental principles underlying any democratic society and is set forth in many international instruments, national constitutions and laws.

 

17. It is the claimants contention that the decision of the defendants to reintroduce the tenure policy to its employment while same is totally disregarded for other Permanent Secretaries and some selected Directors is discriminatory by virtue of section 42 of the 1999 Constitution and Article 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004. To the claimant, sections 42 and 14 of the 1999 Constitution contain anti-discrimination clauses prohibiting selective and discriminatory application of laws and policies in favour of a particular group, section or sex to the prejudice of others. The claimant then referred to the African Charter on Human Rights, the United Nations Declaration on Human Rights and several international treaties ratified by Nigeria, which contain anti-discriminatory clauses similar to the above referenced constitutional clause. That Articles 7 and 21 of the United Nations Declaration of Human Rights, Articles 2(2) and (3) of the International Covenant on Economic and Social Cultural Rights and Articles 2, 13(2) and (3) and Article 19 of the African Charter of Human and Peoples Rights clearly create anti-discrimination provisions that this Court is under a legal obligation to apply. The claimant then relied on Dapaah & anor v. Odey [2018] LPELR-46151(CA), Lafia LG v. Gov, Nasarawa State [2012] 17 NWLR (Pt. 1328) 95. Otunba Oyewole Fashawe v. AG, (Fed) & 3 ors (supra) at 102 (incomplete citation), Haliru v. FRN [2008] All FWLR (Pt. 425) 1697 at I719 and Margaret Chinyere Stitch v. AG of the Federation & ors [1986] LPELR SC.88/1985.

 

 

 

18. The claimant went on that by the affidavit in support of the originating summons, the claimant has shown that the tenure policy did not apply to several Directors and Permanent Secretaries before him and other Permanent Secretaries that are still serving in the Federal Civil Service. That it is also interesting to observe that the defendant has failed to issue any guide for the implementation of the policy, thus, the malicious implementation. That the 1st defendant having refused to implement the tenure policy on the other Permanent Secretaries and Directors in the health sector cannot single out the claimant for the purpose of implementation of the policy in total violation of section 42(1) of the 1999 Constitution, Article 19 of the African Charter and Article 7 of the Universal Declaration of Human Right (UDHR). The claimant also relied on Lafia LG v. Gov, Nasarawa State [2012] 17 NWLR (Pt. 1328) 94, where a policy, which required all unified local government staff serving in local government councils other than their councils of origin to relocate to their local government councils of origin, while staff who were not of Nasarawa State origin to remain where they were working, was declared illegal and unconstitutional as it breached section 42 of the 1999 Constitution.

 

19. The claimant continued that once a policy as in the instant case runs contrary to the provisions of section 42 of the 1999 Constitution, it is by virtue of section 1(3) of the 1999 Constitution inconsistent with the provisions of the Constitution and is to the extent of the inconsistency declared null and void, referring to Agbakoba v. AG, Federation & anor [2021] LPELR-55906(CA). The claimant then urged the Court to resolve issue (2) in his favour.

 

20. As to question/issue (3), whether Rule 020909 of the Public Service Rules (PSR) 2021 which seeks to retire the claimant before his retiring age or time in service, amounts to an unfair labour practice and discriminatory, the claimant referred to Olusa v. NICO & ors [2022] LPELR-57459(CA) where, to the claimant, the Court of Appeal per Adah, JCA (as he then was) acknowledged the proactive application of the tenure policy, reviewing the implication, in these words:

The appellant from the record before us as claimant before the trial Court was in employment as one of the 1st Respondents Director. He, under the Tenure Policy Circular of the Government requiring directors to retire after 8 years on the job, retired from service. The circular was originated and incorporated as Rule 020810(iv)(a) & (b) of the Federal Government Public Service Rules, 2009. The appellant retired sequel to the policy on 2/2/2016. However, after the said retirement, the Federal Government vide a letter dated 17/06/2016 and issued by the 2nd Respondent on 20/06/2016 suspended the Tenure Policy with immediate effect. By all means, the circular suspending the operation of the Tenure Policy can only be applicable to those who were still in service at the time of the suspension. The suspension cannot without more retrospectively apply to those who retired under the Tenure Policy so as to recall them from retirement. The effect of the law is not to wipe down the Policy or to scrap the Policy and its effect. It was meant to suspend the operation of the Policy. The Policy suspension can only be valid for those still in service and not those who have retired under the Policy. It is a cardinal rule of our law that no legislation shall be construed to have retrospective operation unless such is expressly stated in the law. See the cases of - Ojukwu v. Obasanjo & Ors [2004] 12

NWLR (Pt. 886) 169, Afolabi & Ors v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734, Ojokolobo v. Alamu (1987) 13 NWLR (Pt. 61) 377, The Shell Petroleum Development C., of Nigeria Ltd v. chief JoelAnaro & Ors (2015) LPEL 24750 (SC).

 

21. To the claimant, in Olusa v. NICO & ors, the applicant who retired shortly before the suspension of the tenure policy prayed the court to include him in the suspension of the policy, but the court refused his application and held that only persons who are still in service (such like the claimant in this suit) can benefit from the suspension of the policy. That with insight, from the decision of the Court of Appeal, the claimant who is privileged to be in service after the suspension of the policy on 17/06/2016 is qualified to enjoy the suspension of the policy. Furthermore, that retrospective reintroduction of tenure policy is illegal and unenforceable. Here, the claimant adopted his argument as to issues (1) and (2) as if same is being argued hereunder and further asseverate.

 

22. The claimant went on that the conditions of service of members of the Public Service of the Federation are as contained in the Public Service Rules. And by virtue of Rule 020909, Section 9 of Chapter 2 of the PSR 2008, it is part of the conditions of service of claimants to serve in the Public Service of the Federation until they attain the statutory retirement age of 60 years or serve in a pensionable capacity for 35 years, notwithstanding whether they have been promoted to or assumed office as Directors for eight years or more. That this has thus become a part of their contract of service and thus a vested or accrued right. That the purpose of the power vested in the Federal Civil Service Commission by virtue of sections 153(1)(a), 159(1) and l80 and paragraph 11 of the Third Schedule to the 1999 Constitution is for the protection of the members of the Public Service of the Federation and towards ensuring the security of tenure of service in order to encourage the members of the Public Service of the Federation to diligently discharge their duties to the Government of the Federation and with the required level of patriotism, citing Comptroller-General of Customs & ors v. Comptroller Abdullahi B. Gusau [2017] 18 NWLR (Pt. 1598) 353 at 385.

 

23. The claimant continued that the relevant question, therefore, is whether the Federal Civil Service Commission can in conjunction with the Federal Government of Nigeria, make Public Service Rules which run contrary to the object and purpose the Rules are meant to serve as clearly held and affirmed by the Supreme Court in the aforesaid case. That the answer is clearly in the negative. That the Public Service Rules must at all times be in line with the object as formulated by the Supreme Court in line with the Constitution; otherwise, same shall be invalid.

 

24. That the question waiting to be answered is whether Rule 020909, Section 9 of Chapter 2 of the PSR 2021 reducing the tenure or length of service of the claimant, a Permanent Secretary of the Public Service of the Federation, who is eligible to serve for more than four years before attaining the mandatory age of 6o years or 35 years of pensionable service, is meant to protect him or endanger him in terms of security of tenure, which he psychologically needs for patriotic and honest discharge of his duties. That the answer to this question is also obviously in the negative. That this provision does not protect the claimant and same is indeed introducing into the Public Service of the Federation, uncertainty of tenure of service and thereby completely eliminating from the psyche of the said officers the need to render patriotic and honest service to the Government of the Federation.

 

25. On this score alone, that Rule 020909, Section 9 of Chapter 2 of the PSR 2021 is unconstitutional as it has not been made in line with the object and purpose of the provisions of sections 153(1)(a), 159(1) and 180 read together with paragraph 11 of the Third Schedule to the 1999 Constitution the basis of which, power, was vested in the Federal Civil Service Commission to make Rule.

 

26. That apart from the foregoing, the Supreme Court in Comptroller-General of Customs & ors v. Comptroller Abdullahi B. Gusau [2017] 18 NWLR (Pt. 1598) 353 at 385 set aside the provisions of the Customs regulation in issue (which like in this case, made it mandatory for customs officers to retire upon holding a particular post for more than ten years) on the ground that there was already an accrued right and existing conditions of service, which then was based on the 2008 PSR that entitled them to serve until they attain 60 years or 35 years of pensionable service. That these accrued rights and conditions of service could not, therefore, be altered to their disadvantage midstream into their service as such alteration, as earlier explained, was not for their protection and neither did same engender security of tenure of service in the said officers.

 

27. Based on the foregoing, the claimant submitted that the reintroduction of tenure police by the purported implementation of the provisions of the PSR 2O2l is illegal and null and void, urging the Court to resolve this issue in his favour.

 

28. In conclusion, the claimant submitted that in view of the peculiar circumstances of this case, the Court should resist the attempt by the defendants to reintroduce the tenure policy into the Federal Civil Service, urging that the Court resolves all the issues canvased in the claimants favour and grant all the reliefs sought.

 

THE SUBMISSIONS OF THE 1ST DEFENDANT

29. The 1st defendant started off with a statement of the facts. To the 1st defendant, in 2008, the Public Service Rules was enacted and became operational, which consisted of policies and guidelines that define the employment relationship between public servants and the Government. The Rules also spell out the conditions of service and Human Management Procedure in the Public Service. These rules were subject to be amended or altered by circulars validly issued in that regards. That under the 2008 Rules, Section 8 Rule 020810, particularly subparagraph (iv) provided for tenure policy for Directors and Permanent secretaries notwithstanding the provisions of paragraph (i) Rule of 020810. This particular Rule was immediately implemented and some of the affected Permanent Secretaries who were affected were asked to leave the service and they left.

 

30. That sometime in 2016, when President Muhammadu Buhari assumed office, by a circular issued by the Head of Service of the Federation, the tenure policy was suspended and several Permanent Secretaries who were due to retire from service based on the tenure policy enshrined in the 2008 Rules became beneficiaries of the suspension and continued in service till they attained the age of 60 years or had put in 35 years in service, whichever was the case. In fact, that the claimant in this case is only contesting his retirement today because of the suspension of the tenure policy.

 

31. The 1st defendant continued that it is an undisputed fact as deposed to by the claimant himself in the affidavit in support, that he was appointed/promoted to the rank of Federal Permanent Secretary on 12 November 2015. That it is pertinent to state that the employment of the claimant was wholly regulated by the 2008 edition of the Public Service Rules. That the only query of the claimant here is that the introduction of the tenure policy under which he was earlier appointed/promoted to the rank of a Federal Permanent Secretary by the 2021 edition of the Public Service Rules is illegal and unconstitutional having been earlier suspended by a circular in 2016. It is thus the 1st defendants position that the selfish position taken by the claimant who ordinarily would have been out of service if not for the suspension of Rule 020810 (iv) is a total misrepresentation of the law.

 

32. The 1st defendant then adopted the issues as submitted and canvassed by the claimant. The 1st defendant, however, started off with he termed a preliminary argument i.e. an argument as to the contradictory nature of the claimants case. To the 1st defendant, the claimants case as presented in the three questions for determination has no locus or direction. In the first place, that under question one alone, the claimant seems to be arguing two ways. On the one hand, the claimant is arguing that the entire 2021 Edition of the Public Service Rules lacked Presidential approval and are, therefore, unconstitutional and illegal. On the other hand, the claimant seems to be challenging only the inclusion of Rule 020909 in the Rules despite the suspension of a similar Rule in the 2008 Edition of PSR by Mr President.

 

33. Also, that questions 2 and 3 as presented by the claimant for determination suggest that the claimant on the one hand is challenging the validity of the 2021 Edition of the Public Service Rules, and on the other hand is only concerned with the implementation of the said Rules. It is the 1st defendants position that by questions 2 and 3 presented for determination by the claimant, he has conceded to the validity of the said Rules but is only complaining about the application of Rules 020909 of the 202l Edition of the Public Service Rules. The 1st defendant maintained that the claimant is precluded from blowing hot and cold at the same time especially when he has not made any alternative prayer, citing H.K.S.F. v. Ajibawo [2008] 7 NWLR (Pt. 1087) 511 at 530 and Nyako v. A.S.H.A. [2017] 6 NWLR (Pt. 1562) 347 at 394 as authorities that frown on approbating and reprobating in the conduct of a case.

 

34. That in the matter at hand, the claimant's prayers show clearly that he is out to fish for the most favourable outcome of his case but unfortunately, instead of asking questions 2 and 3 in

alternative to question one, he mumble jumble all three questions as one claim. The 1st defendant then urged the Court to strike out the claimants case for being contradictory in nature.

 

35. On question (1), whether the tenure policy remains suspended, the 1st defendant submitted that questions is selfishly drafted to confuse or mislead the Court. That the right question the Court will be resolving under this issue is whether upon the coming into effect of the 2021 Edition of the Public Service Rules, the suspension of the tenure policy for Directors and Permanent Secretaries under the 2008 Edition of the Rules still subsist. That from this onset, the suspension of the policy under the 2008 Edition cannot affect the provisions made under the 2021 Edition of the Public Service Rules.

 

36. The 1st defendant then drew the Courts attention to the deposition of the claimant in paragraph 4 of the affidavit in support of his originating summons wherein he stated thus:

The 1st Defendant is the Head of Civil Service of the Federal Republic of Nigeria and an agent of the President of the Federal Republic of Nigeria, responsible for making policy directive for smooth and effective administration of Civil/Public Service.

 

37. To the 1st defendant, with this deposition of the claimant, it is amazing that the claimant argues that the 2021 Edition of the Public Service Rules, which were presented and approved by the Federal Executive Council on “29 September 2021”, are ultra vires the powers of the 1st defendant considering the above admission made by him, citing Abalaka v. Akinsete & ors [2023] LPELR-60349(SC) and Ipinlaiye v. Olukotun [1996] 6 NWLR (Pt. 453) 148, which held that a defendant is entitled to rely upon the admission against interest made by the other party to defeat the other parties claim. That in the matter at hand, the claimant who is challenging the powers of the 1s defendant to make the 202l Edition of the Public Service Rules has admitted in his affidavit in support of his originating summons that the defendant has the power to make the Rules.

 

38. That besides the admission of the claimant of the power of the 1st defendant to issue policy directives for the effective and efficient administration of the Civil/Public Service of the Federation, the principle of law on the presumption of regularity of actions of a public officer as enshrined in section 168(l) and (2) of EvidenceAct must operate in aid to the 1st defendant in the instant case. The section provides thus:

(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.

(2) When it is shown that a person acted in a public capacity, it is presumed that he had been truly appointed and was entitled so to act.

 

39. Applying this provision to this case, it is the 1st defendants submission that the 2021 Edition of the Public Service Rules having been approved by the President and Federal Executive Council, the argument of the claimant that the Head of Civil Service of the Federation unilaterally issued the 2021 Edition of Public Service Rules, is no longer tenable. That there is presumption that every requirement for the issuance of the 2021 Edition of the Public Service

Rules was met, citing Shitta-Bey v. AG, Federation & anor [1998] LPELR-3055(SC), which held that there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done.

 

40. The 1st defendant then urged the Court to discountenance all the arguments of the claimant that the 2021 Edition of the Public Service Rules is unconstitutional and ultra vires the powers of the 1st defendant.

 

41. However, that assuming without conceding that the Federal Executive Council approval was/ is not even cited in this matter, the fact is that the claimant has acknowledged the powers of the Head of Civil Service of the Federation to act on behalf of Mr President. Accordingly, this has the presumption that the Rules were validly made with the consent and approval of the President.

 

42. The 1st defendant went on that where the express approval of the Federal Executive Council was even sought by the President, both the making and the approval of the Public Service Rules followed due process and the Rules were not unilaterally made by the Head of the Civil Service of the Federation, referring to paragraph 4(xxx) to (xxxii) of the 1st defendants counter-affidavit and the exhibits attached thereto in urging the Court to discountenance the argument of the claimant on this point.

 

43. Additionally, the Public Service Rules as approved by the Federal Executive supersede any circular that was issued during the operation of the 2008 Edition of the Public Service Rules. That Circular No. HCSF/428/S.1/139 which was issued by the Head of Civil Service of the Federation after the directive of Mr President cannot be used to invalidate or nullify any provision of Rule 020909 of the 2021 Edition of the Public Service Rules. That the law is well settled that duties and obligations contained in a statute are only activated when the law comes into force, citing Obi-Akejule v. Delta State Govt. [2009] l7 NWLR (Pt. 1170) 292 at 306.

 

44. In the matter at hand, that after the suspension of the provision of Section 8 Rule 020810(vi) (a) and (b) by the President, as was communicated through Circular No. HCSF/428/S.1/139 issued by the Head of Civil Service of the Federation, the presidential committee set up to look into the tenure policy for Directors and Permanent Secretaries actually recommended the reintroduction of the tenure policy for Directors and Permanent Secretaries, referring to Exhibit HOS2. That by the passage of the 2021 Edition of the Public Service Rules and its coming operation on the 27 July 2023, all the activities of Civil/Public Servants of the Federation are governed by the said Rules irrespective of when the person was employed into the Public Service of the Federation, citing Modibbo v. Usman [2020] 3 NWLR (Pt. 1712) 470 at 518 - 519. That a typical appointment letter like the one attached as Exhibit HOS1 to the 1st defendants counter-affidavit shows clearly that the appointment of every civil/public servant is regulated by the PSR and every amendment or alteration to the PSR affects all the employees in the service of the Federation.

 

45. The 1st defendant proceeded that upon the approval of the 2021 Edition of the PSR by the Federal Executive Council with the inclusion of Rule 020909 for a tenure policy for Directors and Permanent Secretaries in the Federal Civil/Public Service, the Federal Executive Council was fully aware of the existence of the directive of the President of the Federal Republic of Nigeria that suspended the application of a similar rule under the 2008 edition of the Rules, and by allowing the inclusion of Rule 020909 into the 2021 Edition of the PSR, it confirms the restoration of the tenure policy into the Public Service of the Federation. It is thus the 1st defendants that if it were the intention of the President to do away with the tenure policy for Permanent Secretaries, it would have been removed entirely from the 2021 Edition of the PSR. That the fact that it was deliberated upon and retuned in the 2021 Edition of the PSR is a clear testimony that the authorities wanted it retained, urging the Court to so hold.

 

46. That apart from the clear intention of the authorities to retain the tenure policy in the 2021 Edition of PSR, the status of a circular is inferior to the PSR. That normally, the status of a circular in the Public Service is below that of the provisions of the Public Service Rules. It is beyond argument now that circulars are a common form of administrative documents by which instructions are disseminated in the Public Service and cannot be implied above the PSR, citing Maideribe v. FRN [2014] 5 NWLR (Pt. 1399) 68 at 92, which inter alia held that circulars in themselves have no legal effect whatsoever, having no statutory authority.

 

47. The 1st defendant went on that the extreme position argued by the claimant on the subsisting nature of the directive of the President conveyed in Circular No. HCSF/428/S.1/139 is unreasonable and a total misconception of law. That this Court in Suit No NICN/ABJ/241/2018 between Mrs Ramatu T. Shehu vs Judicial Service Committee of the Federal Capital Territory & anor delivered on the 3 March 2020, maintained its firm view that a circular cannot amend the Public Service Rule except where it confers a benefit on the public servant.

 

48. That the only question this Court is invited by the claimant to decide under issue 1 is for the Court to either declare the entire 2021 Edition of the PSR as being unconstitutional or to hold that the earlier directive of the President, communicated via HCSF/428/S.1/139, which only suspended the application of Rule 020810(iv)(a) and (b), is still extant despite the enactment of the 2021 Edition of the PSR. That though “President Mohammadu Buhari” is not here, Government is a continua and it is only the President (His Excellency Bola Ahmed Tinubu) that can rightly deny the validity of the 2021 Edition of the PSR especially as it relates to the tenure Policy for Permanent secretaries.

 

49. It is thus the contention of the 1st defendant that this type of argument as advanced by the claimant is highly unreasonable. To the 1st defendant, a circular that was issued pursuant to the 2008 edition of the PST cannot in any way be a subsisting circular after the approval of the 2021 edition of the PSR, urging the Court to so hold and resolve this issue against the claimant.

 

50. The 1st defendant took questions (2) and (3) together given their interwoven nature. To the 1st defendant, these questions presented by the claimant appear preconceived, conclusive and lopsided in construction. That a careful examination of same, also reveal a salient concession on the part of the claimant that the PSR 2021, which became operative with effect from 27 July 2023, was validly enacted, urging the Court to so hold. The 1st defendant continued that being fully aware that it is limited to the questions presented by the claimant, and after a careful examination, the questions so presented call for the determination of the following by this Court:

(a) Whether the implementation of tenure policy in the Federal Civil Service of the Federation is illegal and violates the claimants right to freedom from discrimination guaranteed by section 42 of the Constitution of the Federal Republic of Nigeria; and

(b) Whether the provisions of Rule 020909 of the Public Service Rules, 2021 which became operative with effect from 27th July, 2023 is retroactive, discriminatory and amounts to an unfair labour practice and a gross violation of section 42 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

 

51. It is the 1st defendants contention that the implementation of tenure policy in the Federal Civil Service of the Federation is not in any way illegal, retroactive/retrospective against the claimant or violates the claimants right to freedom from discrimination guaranteed by section 42 of the 1999 Constitution. That this contention is premised on the fact that Section 9 Rule 020909 of the PSR 2021 Edition is not in any way discriminatory or in conflict with section 42 of the 1999 Constitution. Section 9 Rule 020909 of the PSR 2021 Edition provides for the tenure policy thus:

A Director or its equivalent by whatever nomenclature it is described in MDAs shall compulsorily retire upon serving eight years on the post; and a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more (emboldening is the 1st defendants).

 

52. That the claimants complaint by this suit revolves around the above provision. That it is the claim of the claimant that the re-introduction of the above rule (tenure policy for Permanent Secretaries) in the Public Service of the Federation is retroactive and discriminatory against his person, and consequently in breach of section 42 of the 1999 Constitution.

 

53. On the claimants claim on discrimination, the 1st defendant contended that the position of the claimant is misleading, misconceived and not in any way supported by law. This is because, a careful examination of Rule 020909 shows that the Rule is of general application and not targeted at only the claimant or discriminatory on the basis of his community, ethnic group, place of origin, sex, religion, circumstance of birth or political opinion. In other words, the tenure policy applies to all Permanent Secretaries. That the claimant in this regard has admitted at paragraph 15 of the affidavit in support of his originating summons that the 1st defendant has on 12 July 2023 directed that all Permanent Secretaries including the claimant that have served for more than four (4) years as Permanent Secretaries should proceed on compulsory retirement in line with the tenure policy in Section 9 Rule 020909 of the PSR 2021 Edition. That this, no doubt presupposes a general application that is not discriminatory in nature.

 

 

 

54. That the fact that the claimant is affected by the policy does not make Section 9 Rule 020909 of the PSR 2021 edition discriminatory. To further reveal the weakness of the claimant's argument, the 1st defendant posited that a composite reading of section 42 of the 1999 Constitution shows clearly that for an act or action be said to be discriminatory in nature, it must come within the specific items mentioned in section 42(l) of the Constitution. That section 42(1) (a) and (b) in relation to the provision of Section 9 Rule 020909 of the PSR 2021 Edition reveals that the said provision as it affects the complaint of the claimant is not discriminatory. This is more so that the provision applies to all Directors in MDAs as well as Permanent Secretaries. That for the tenure policy as contained in the 2021 Edition of the PSR to be discriminatory in nature, the application must be limited to some Permanent Secretaries and discriminatory to others on the basis of their communities, ethnic group, place of origin, sex, religion, circumstance of birth or political opinion, citing Uzoukwu v. Ezeonu II [1991] 6 NWLR (Pt. 200) 708 at 779 - 780.

 

55. It is the 1st defendants position that in relating this position to the facts of this case, the tenure policy cannot be placed within the list enumerated in section 42 of the Constitution. That the application of tenure policy cuts across all Permanent Secretaries regardless of their communities, ethnic group, places of origin, sex, religion, or political opinions. That the claimant cannot in this regard argue that he has been discriminated against in breach of section 42 of the Constitution. In any case, as deposed to in paragraphs 4(vi), (vii), of the 1st defendants counter-affidavit, the appointment of the claimant is regulated by the Public Service Rules as can be issued or amended from time to time; and the appointment and removal of Permanent Secretaries is also at the pleasure of the President. That the claimant is only in this Court today to fight this policy because he wanted to benefit from the suspension of the provision of Section 8 Rule 020810(iv)(b) of the 2008 Edition of the Rules, referring to paragraphs 4 xv, xvii, xix, xx, xxi, xxii and xxiii of the 1st defendants counter-affidavit.

 

56. That the claimant has woefully failed to establish both in fact and law how Rule 020909 of the PSR 2021 Edition is discriminatory against him on the basis of the grounds mentioned in section 42 of the 1999 Constitution. That the policy cannot be placed within the wordings of section 42 of the Constitution. In fact, even a mirage of it cannot be glanced in section 42 of the Constitution. The 1st defendant then submitted that it is stretching the section beyond its elastic capacity to place the tenure policy under the domain of discrimination as contemplated by section 42 of the Constitution.

 

 

57. To the 1st defendant, in the interpretation of section 42 of the Constitution, this Court will realise that the term “discrimination” as contemplated in section 42 is prohibited on the identified grounds of communities, ethnic groups, place of origin, sex, religion, circumstance of birth or political opinions. In other words, section 42 of the Constitution does not admit any form of alleged discrimination on ground other than those contained in the provision. That it is good law that a party cannot read into the Constitution what is not there, citing Ikechukwu v. EFCC [2015] 18 NWLR (Pt. 1490) 1 at 22 - 26.

 

 

58. Furthermore, that the established principle of law that the express mentioned of a thing is the exclusion of others, captured in the latin maxim Expressio unius est exclusio alterius”, also applies in this case. That the express mention of the following grounds: communities, ethnic group, place of origin, sex, religion, circumstance of birth or political opinion, imply the exclusion of other grounds not mentioned, citing The Hon. AG of Lagos State v. The Hon. AG of the Federation [2014] NSCQR Vol. 58 page 270 at 343.

 

59. That in the matter at hand, the express mention of communities, ethnic groups, places of origin, sex, religion, circumstance of birth or political opinion as grounds to constituting discrimination in section 42 of the Constitution means that any other ground not mentioned therein is excluded. In this regard, the complaint of the claimant being merely on the reintroduction of tenure policy for Permanent Secretaries, the said policy which applies to all Permanent Secretaries irrespective of their communities, ethnic groups, places of origin, sex, religion or political opinion cannot be held to be discriminatory as contemplated by the Constitution. That it is inconceivable for the claimant to contend that the tenure policy is discriminatory against him, urging the Court to so hold and dismiss the claims of the claimant.

 

60. It is also the contention of the 1st defendant that the framers of section 42 of the Constitution were intentional to restrict the items in section 42(1) of the Constitution to the ones expressly mentioned therein. That this intention is manifest in the use of the word ‘or immediately before the last item. For avoidance of doubt, section 42(l) of the Constitution mentioned community, ethnic group, place of origin, sex, religion or political opinion and nothing more as grounds which a citizen of Nigeria may be discriminated upon and prohibit discrimination on such grounds. It is the 1st defendants submission that the use of the word ‘orbefore political opinion in section 42(1) of the Constitution indicates the clear intention that anything outside the grounds listed therein cannot be accommodated as grounds of discrimination as contemplated by the section. That the ground of political opinion mentioned after the other grounds is the only alternative beside the ones first mentioned or listed.

 

61. Furthermore, that the claimant had relied heavily on Lafia LG v. The Executive Governor, Nasarawa State & 5 ors [2012] 17 NWLR (Pt. 1328) 94 to argue that the reintroduction of the tenure policy as contained in Section 9 Rule 020909 of the PSR 2021 Edition amounts to breach of the claimants right from discrimination. But ti the 1st defendant, Lafia LG suffers from an incurable irrelevancy and is not applicable to the facts and circumstance of this case. That the claimant, paragraph 3.9 of the his written address, explained the genesis of the decision. In the words of the claimant, the dispute in the matter arose over a policy by the Nasarawa State Government that infringed on the constitutional rights relating to DISCRIMINATION ON ETHNICITY AND PLACE OF ORIGIN SYNDROME. That the policy required all unified Local Government staff serving in Local Government Councils other than their Councils of origin to relocate to their Local Government Councils of origin while staff who were not of Nasarawa State origin to remain where they were working. That the brief background of the cause of action as revealed by the claimant in paragraph 3.9 of his written address no doubt exposed the fact that the decision is premised on discrimination on the ground of ethnicity and place of origin.

 

62. That it is interesting to know that as opposed to the cause of action in Lafia LG, the crux of the claimants complaint or cause of action herein relates to the reintroduction of the tenure policy for Permanent Secretaries in the Public Service of the Federation irrespective of their communities, ethnic groups, places of origin, sex, religion or political opinion. That the claimants complaint in the instant suit has nothing to do with his community, ethnic group, place of origin, sex, religion, circumstance of birth or political opinion. That the reintroduction of tenure policy for Permanent Secretaries as provided under Section 9 Rule 020909 of the PSR 2021 Edition, which formed the basis of the claimants complaint, applies to all persons, irrespective of their communities, ethnic groups, place of origin, sex, religion or political opinion. Consequently, that Lafia LG is of no use to the case of the claimant, urging the Court to so hold and dismiss the claims of the claimant.

 

63. The 1st defendant continued that the claimant is not the first Permanent Secretary who will be affected by introduction of tenure policy in the Public Service of the Federation. That as deposed to in paragraph 4(xx) of the 1st defendants counter-affidavit, the introduction of the tenure policy for the first time under the 2008 Edition of the PSR saw several Directors and Permanent Secretaries who had spent 8 years or more leaving service. Also as deposed to in paragraphs 4(xviii), (xx), (xxi), (xxii) and (xxiii) of same counter-affidavit, the claimant who said that he was appointed/promoted as a Director in 2013 and was appointed as a Permanent Secretary in 2015 is only contesting the implementation of the 2021 Edition of PSR because he wanted to benefit from the suspension of the tenure policy. Flowing from this, it is the 1st defendants submission that Section 9 Rule 020909 of the PSR 2021 being a law validly made, and imposes restriction on the tenure of all persons appointed as Permanent Secretaries, falls within the exception created under section 42(3) of the Constitution. In this regard, that the claimant cannot be heard complaining that his right to freedom from discrimination has been breached by Section 9 Rule 020909 of the PSR 2021 Edition, urging the Court to so hold and dismiss the claimants claim.

 

64. Furthermore, that a closer look at paragraphs 18, 19, 20 and 21 of the affidavit in support of the claimants originating summons will show that the claimant averred that the reintroduction of the suspended tenure policy for Permanent Secretaries is discriminatory against the claimant because several Permanent Secretaries before the claimant served in the Federal Civil Service until they attained the retirement age of 60 years or 35 years of pensionable service. To the 1st defendant, this position of the claimant is misconceived. This is because the PSR 2021 is a law regulating the conditions of service of the claimant. That a law validly in operation has the ultimate effect of changing prior norms and circumstances in compliance/obedience with the provisions of the law. That the claimant having accepted appointment in the Federal Civil Service is bound by the provisions of the Public Service Rules 2021. That the claimant cannot decide to comply with only provisions that favour him and disregard others that do not. And the claimant cannot because the new provision of Section 9 Rule 020909 of the PSR 2021 does not benefit him invoke the principle of discrimination.

 

65. The 1st defendant proceeded to submit that the allegation of the claimant in paragraph 19 of his supporting affidavit is false and as deposed to in paragraph xliii of the counter-affidavit in opposition to the claimants originating summons, the claimant as a Permanent Secretary will retire with his salaries intact and will be capable of fulfilling all his loan obligation if there is any.

 

66. That Section 8 Rule 020810 of the PSR 2008, which is impari materia with Section 9 Rule 020909 of the PSR 2021 Edition, provides for compulsory retirement age for all grades in the service to be 60 years or 35 years of pensionable service whichever is earlier. That the said provision is a general provision, while Section 9 Rule 020909 of the PSR 2021 Edition, which provides for compulsory retirement of Permanent Secretaries having held office for a term of four (4) years and renewed for a further term of four (4) years, subject to satisfactory performance, is a specific provision limiting the application of the general provision, citing Ardo v. Nyako & ors [2014] LPELR-22878(SC), which, relying on Schroder v. Major [1989] 2 NWLR (Pt. 101) 1 at 13, held that the law takes the course which does not permit a general provision to derogate from a special provision.

 

67. The 1st defendant continued that the claimant cannot say that because he is affected by the specific provision, the said provision is discriminatory against him. In other words, the fact that other Permanent Secretaries benefited from the compulsory retirement age of 60 years or 35 years of pensionable service, whichever is earlier, prior to the reintroduction of the tenure policy of 4 years and a further term of 4 years for Permanent Secretaries, the new law cannot be said to be discriminatory against the claimant in favour of the earlier Permanent Secretaries that benefited in the absence of the tenure policy. This is more so that there are several ways of leaving the public service, like failure of promotion exams for three consecutive times, being found wanting of general inefficiency or dismissal.

 

68. That the claimant had argued that the reintroduction of the tenure policy was made against him while disregarding other Permanent Secretaries and some selected Directors in breach of section 42 of the Constitution. To the 1st defendant, this position of the claimant is misleading and misconceived given that Section 9 Rule 020909 of the PSR 2021 applies to all Directors and Permanent Secretaries and not only the claimant and selected few as argued by the claimant, urging the Court to attach no value to the claims of the claimant and dismiss same for lacking in merit.

 

69. Furthermore, the claimant had relied on Olusa v. NICO & ors [2022] LPELR-57459(CA) to argue that the reintroduction of tenure policy for Permanent Secretaries in Section 9 Rule 020909 of the PSR 2021 is retroactive against the claimant, hence unconstitutional. To the 1st defendant, this position of the claimant is misconceived as the decision in Olusa v. NICO & ors (supra) relied upon by the claimant does not support his case, rather the said decision adds strength to the position of the 1st defendant. This is because a careful examination of the decision reveals that the claimants in that decision retired on 2/2/2016 shortly before the suspension of the tenure policy which came into effect on 20/06/2016. Consequently, the court held that the claimants having retired before the circular letter suspending the tenure policy, the letter cannot take effect retrospectively to allow the claimants who have retired to benefit therein. That in relating this decision with the facts of the instant case, it will be realized that the claimant was in service as a Permanent Secretary in the Civil Service of the Federation when Section 9 Rule 020909 of the PSR 2021 came into effect. The claimant cannot in this regard hold the view that the Rule is being applied retroactively against him, urging the Court to so hold and dismiss the claims of the claimant.

 

70. The claimant had also relied on Comptroller-General of Customs v. Comptroller Abdullahi B. Gusau [2017] 13 NWLR (Pt. 1598) 353 at 385 to state that Section 9 Rule 020909 of the PSR 2021 is contrary to the object and purpose of the PSR. To the 1st defendant, this position of the claimant is misconceived as the decision in Comptroller-General of Customs v. Comptroller Abdullahi B. Gusau (supra) is not applicable to the facts and circumstance of the instant case. This is because the claimants in Comptroller-General of Customs v. Comptroller Abdullahi B. Gusau (supra) were made to compulsorily retire from the service of the Nigerian Customs on the basis of Policy Guidelines on Custom Service in breach of the express provisions of the PSR. That the claimants in challenging their premature retirement on the basis of the Guidelines, the apex Court affirmed the superiority of the PSR over the Policy Guidelines on Custom Service which appears to be in express breach of the object and purpose of the PSR. In the matter at hand, it is the PSR itself that the claimant is challenging on the ground that a circular which was issued suspending the operation of a provision of the 2008 Edition of the PSR is still alive to affect the operation of a similar provision under the 2021 Edition of the PSR.

 

71. That in relating the above with the facts of the instant case, it will be realized that the subject matter of the instant suit relates to the reintroduction of the tenure policy of Directors and Permanently Secretaries in Section 9 Rule 020909 of the PSR 2021. That the tenure policy is part of the PSR, it is not contained in a separate guideline or another instrument as to state that the said instrument is inconsistent with the object of the PSR. That Section 9 Rule 020909 of the PSR 2021 is only a specific provision that limits the application of Section 9 Rule 020908 of the same PSR which is a general application, urging the Court to so hold and dismiss the entire claim of the claimant for lacking in merit.

 

72. In conclusion, submitted that the claimants case does not have any merit, and he has not established any of his claims. Accordingly, the case should be dismissed in its entirety.

 

THE SUBMISSIONS OF THE 2ND DEFENDANT

73. The 2nd defendant also started off with a statement of facts. To the 2nd defendant, the claimant claims that he was appointed in 2013 as a Director in the Federal Civil Service of the Federation and was later appointed as a Permanent Secretary on 10 November 2015. That the claimant claimed that the former President Muhammadu Buhari through the office of the 1st defendant issued a circular with Reference No. HCSF/428/S.1/139 dated 20 July 2016 to suspend the tenure system of Rule 020810(vi)(b) of the PSR 2008 which states that a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more. Also that the claimant claims to believe that the said suspension of Rule 020810(iv)(b) of the PSR 2008 still subsists and that the implementation of the approved Revised Public Service Rules 2021, which was approved by the Federal Executive Council under the leadership of the same former President Muhammadu Buhari, particularly, its Rule 020909 by the defendants is discriminatory against him. As such, the claimant is urging this Court to restrain the defendants from the implementation of the PSR 2021 which came into force on 27 July 2023 particularly as it concerns the tenure policy provided in Rule 020909 of the PSR 2021.

 

74. The 2nd defendant then reproduced the questions posed by the claimant, stating that he will respond to the said questions, and then formulated a sole issue for determination as follows: whether the claimant is entitled to the reliefs sought against the defendants in this suit.

 

75. In response to question (1) posed by the claimant, the 2nd defendant submitted that the suspension of the tenure policy in the Federal Civil Service is no longer suspended and that the policy has been re-activated by the approval of the statutorily Revised Public Service Rules 2021 on the 27 September 2021 by the Federal Executive Council under the leadership of the former President Muhammadu Buhari, who issued the circular dated 20 July 2016 with Reference No: HCSF/428/S.1/139 through the office of the 1st defendant in this suit.

 

76. The 2nd defendant then brought to the fore, the definition of the operative word “suspension”. To the 2nd defendant, suspension means “a temporary in-operation of a state of affairs which terminates over a period of time by re-activation of the state of affairs previously in place”. That according to the Blacks Law Dictionary, 2nd Edition, suspension means:

A temporary stop of a right, of a law, and the like… Suspension of a right in an estate is a temporary or partial withholding of it from use of exercise. It differs from extinguishment because a suspended right susceptible of being revived, which is not the case where the right was extinguished…

 

77. That the Blacks Law Dictionary, 6th Edition went further to define suspension to means:

To interrupt; to cause to cease for a time; to stay, delay, or hinder; to discontinue temporarily, but with an expectation or purpose of resumption…. See Insurance CO. V. Aiken, 82 Va. 428; Stack V. O. Hara, 98Pa. 232; Iteeside V.U.S…8 W all 42, 10L. Ed. 318…See SUSPENSION.

 

78. To the 2nd defendant, these definitions clearly confirm that the suspension of the Rule 020810(b) of PSR 2008 bordering on the tenure policy of 4 years for a Permanent Secretary which is renewable for a further term of 4 years, subject to satisfactory performance, and no more, before compulsory retirement was clearly a temporary or partial operation of the said Rule which can be reactivated and was clearly reactivated by the approval of the Federal Executive Council under the leadership of the former President Muhammadu Buhari (the same Government that issued the circular dated 20 July 2016 with Reference No. HCSF/428/S.1/139 through the office of the 1st defendant) on 27 September 2021. It is thus the position of the 2nd defendant that the said circular dated 20 July 2016 with Reference No. HCSF/428/S.1/139 through the office of the 1st defendant no longer subsists as the circular with Reference Number: HCSF/ SPSO/268/T3/2/37 dated 27 July 2023 by the office of the 1st defendant has revived the then Rule 020810(b) of PSR 2008 now Rule 020909 of PSR 2021, which came into effect on 27 July 2023.

 

79. To the 2nd defendant, it is important to stress that a policy is a set of rules or guidelines put in place by a government and other organizations to address a particular issue or problem. That the tenure policy by the Federal Government is to solve the issue of career stagnation within the service which affected the entire career progression in the service. It became expedient to re-introduce the tenure policy for the benefit of all officers within the Public Service of the Federation. That the claimant brought this suit in bad faith having regard that the claimant benefitted from the tenure policy under the PSR 2008 before it was suspended in 2016 but now instituted this suit to challenge the re-introduction of the tenure policy. That the claimant never at any time challenged the PSR 2008, which guided his employment in 2013, when he was appointed into the civil service.

 

80. The 2nd defendant went on that the claimant, as a public servant, is expected to keep himself abreast of the provisions of the PSR, and circulars are issued from time to time to project the policy of Government of the day as provided in paragraph 3 of the preamble of the PSR 2008 and 2021 respectively. That the claimant upon entry into service agreed and accepted to be bound by the PSR 2008 and all laws or guidelines governing the public service, which incorporate the conditions of all public servants in the Public Service of the Federation. That the claimant cannot choose the circulars of PSR he wants to be bound by. He cannot approbate and reprobate as he has been stopped by his letter of acceptance to be bound by all guidelines governing the public service. That the PSR is the document that sets out the guidelines or set of Rules guiding the conduct of public officers in implementing the policies of the Federal Government in Nigeria.

 

81. It is also the position of the 2nd defendant that the circular dated 27 July 2023 overrides the circular dated 20 July 2016. Consequently, that this Court should answer question (1) posed by the claimant in favour of the defendants, disregarding the claimant's argument in support of same, and dismiss the claimants suit in its entirety as it lacks merit.

 

82. On question (2) posed by the claimant, it is the position of the 2nd defendant that the implementation of the tenure policy by the Federal Civil Service of the Federation is neither discriminatory nor illegal to the extent of violating the claimants right to freedom from discrimination protected under the section 42 of the 1999 Constitution. That the right to freedom from discrimination enshrined under section 42 of the 1999 Constitution is not absolute. That the right has exceptions in section 42(3) of the 1999 Constitution, which clearly states that the law imposes restriction with respect to the appointment of any person to any office under the State,

 

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the State being the Federal Republic of Nigeria. Consequently, that the claimant cannot claim that the implementation of the provisions that guide his appointment which is the PSR 2008 and 2021 respectively has discriminated against him based on the fact that the circular of 20 July 2016 suspended the tenure system for a Permanent Secretary.

 

83. The 2nd defendant then stressed that the implementation of the Revised Public Service Rules 2021 was based on approval and was communicated through the circular of 27 July 2023, which clearly overrides the earlier suspension. To the 2nd defendant, the 2nd defendants position is not farfetched having regard that the implementation is pursuant to the Revised PSR 2021, which has now revived the suspension of the PSR 2008, particularly Rule 020810(iv)(b) of the PSR 2008.

 

84. The 2nd defendant then referred to paragraphs 3 and 4 of the preamble to the Revised PSR 2021, which is impari materia with the preamble to the PSR 2008, which states as follows;

3 Amendments

Further amendments to these Rules become necessary when new policies are formulated. The accompanying Manuals and Guidelines for its implementation, in instances, shall be made through Circulars, which will be issued from time to time.

 

4. Review of the Public Service Rules (PSR)

The Public Service Rules shall be reviewed every five years to update the provisions of the rules and to accommodate the provisions in Circulars issued between the period of previous review and the PSR.

The Public Service Rules should be widely circulated to all categories of public servants. Other Nigerian Citizens are also encouraged to avail themselves with its content…

 

85. And then referred Amaechina & anor v. Hon. Minister of Education & ors [2018] LPELR-51051(CA), which relied on Maideribe v. FRN [2014] 5 NWLR 92, as to the legal status of government circulars i.e. they contain general statements of policy and so are of great importance to the public giving many guidelines about government organization and exercise of discretionary powers. And they are more than a mere administrative document conveying new policy guidelines by the Federal Government. To the 2nd defendant, going by all this, it is a circular that was used to suspend the then Rule 020810(b) of the PSR 2008 and it is a circular that was used to implement the approval of the Federal Executive Council to the Revised PSR 2021, which restored the tenure system in its Rule 020909.

 

86. That the implementation of the Revised PSR 2021 is in compliance with the rule of law and has not breached the claimants fundamental rights, particularly section 42 of the 1999 Constitution. That the claimant was never targeted for discrimination by the defendants or the Federal Government of Nigeria. The suspension of the tenure system was meant to subsist for only a period of time.

 

87. Furthermore, that the PSR 2021 is applicable to all public servants, whether in the Civil Service or Public Service and discriminates against no one. Therefore, the Court should discountenance the claimants allegation of discrimination by the Federal Government against the claimant and answer question (2) posed by the claimant in favour of the 2nd defendant; and then dismiss this suit in its entirety as it lacks merit and is against the rule of law and justice in the Federal Civil Service of the Federation.

 

88. In respect of question (3) posed by the claimant, it is the position of the 2nd defendant that Rule 020909 of the PSR 2021 was not made to be retroactive but was merely suspended by the circular dated 20 July 2016. Based on the definitions of suspension earlier given and the status of a circular, that the circular dated 27 July 2023 supersedes and revived the tenure policy as it once again gave effect to Rule 020909 of the 2021 Rules. That to say that the said provision is made retroactive is an aberration having regard that the rule was in place and now revived. That there is no denial that Rule 020908 of the 2021 Rules exists, Rule 020909 is a clear exception as it relates to the tenure of a Permanent Secretary in the interest of the public service and in furtherance of career progression within the Public Service of the Federation. That the claimants right was never infringed on by the implementation of Rule 020909 of PSR 2021 because the said Rule was only “pended” and now back in force.

 

89. The 2nd defendant then proceeded to state the importance and aim of a policy in Deaconess Mrs Felicia Ogundipe v. Minister of the Federal Capital Territory [2014] LPELR-22771(SC), which is to address a particular issue or problem. Therefore, the tenure policy being contended by the claimant aims to cure amongst others, a problem of career stagnation within the public service which affects the whole and not peculiar to the Claimant and also to check age cheats in the Public Service, referring to Limak Yatirim Enerji Uretim Isletme Hizmetierive Insaat AS, Uludag African Power Limited and Lima Africa Power Limited v. Sahelian Energy and Integrated Services Ltd [2021] LPELR-58182(CA) wherein public policy was defined to mean, the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is regarded as injurious to the public interest.

 

90. The 2nd defendant continued that it will amount to injustice to allow the claimant to hold the whole Public Service of the Federation and its officers to ransom by the reason of this suit. That the claimants suit is obviously injurious to the public service and against public interest which the tenure policy seeks to promote (the stagnation of career progression affecting the entire public service). Accordingly, the 2nd defendant submitted that this Court should answer this question in favour of the 2nd defendant and dismiss the claimants suit as it lacks merit as it is aimed at wasting the precious time of the Court.

 

91. The 2nd defendant then addressed the sole issue he framed i.e. whether the claimant is entitled to the reliefs sought against the 2nd defendant in this suit. In the first place, the 2nd defendant asserted that he who asserts must prove. And so when a plaintiff brings an action for a wrong done through an act or omission, it must be properly discernible and proved on the balance of probability. That the claimant brought this action against the 2nd defendant stating that the implementation of the tenure policy in the Federal Civil Service according to Rule 020909 of PSR 2021, which was suspended and now being implemented, has discriminated against him by allegedly having a retrospective effect.

 

92. To the 2nd defendant, the claimant has not sufficiently proved how the implementation of the Revised PSR 2021 has infringed on his right of freedom from discrimination and how it has amounted to breach of the rule of law and against the interest of the public to warrant the setting aside of same. That the 2nd defendant has been able to show that the Revised PSR 2021 was approved by the very same government that earlier suspended the tenure policy system.

 

93. The 2nd defendant went on that the claimant also failed to prove that the defendants have targeted him because the same authority that temporarily stopped the tenure policy as it relates to a Permanent Secretary had approved the revival of same with the approval of the Revised PSR 2021 where the implementation of Rule 020909 is contained. That the implementation of the Revised PSR appointment was done according to the dictates of the PSR 2021 as approved and came into effect on the 27 July 2023. That the claimant has not shown the contrary to warrant the grant of three declaratory reliefs and two orders for perpetual injunctions and an order to set aside the implementation of the PSR 2021 against the claimant. That the claimant also has not shown that upon entry into service he has not accepted to abide by the Rules and Regulations of the PSR.

 

94. That contrary to the claims of the claimant, the defendants, especially the 2nd defendant, have not been proved to have discriminated against him. That the claimant ought to have been armed with the provisions of the Rules and the functions of the public service which majorly is to give effect to the policies of the Government to achieve its goals. That the tenure policy has always been in the Federal Civil Service before same was suspended and later revived in the Revised PSR 2021. The said Rules were not made retrospective but resumed after it was suspended. The policy was not outrightly removed but was merely suspended till a particular time when it will be revived or revised. That a public servant ought to avail himself with the content of the Rules. Therefore, the claimant has no excuse not to know that the suspension of the tenure policy will one day be lifted and to maintain that the said policy remains suspended amounts to an aberration on the part of the claimant.

 

95. To the 2nd defendant, the burden of proving whether the defendants discriminated against him by implementing Rule 020909 of PSR 2021 solely rests on the claimant; and proof is on preponderance of evidence and balance of probability, citing section 131 of the Evidence Act 2011 and Owena Mass Transportation Co. Ltd v. Okonogbo [2018] LPELR-45221(CA). The 2nd defendant insisted that the claimant filed to prove his claim of illegality against the already performed duty of the 1st defendant and the Federal Government of Nigeria, urging the Court to dismiss the claimants claim in the suit.

 

96. The 2nd defendant proceeded top address the condition upon which declaratory reliefs will be granted. It is the submission of the 2nd defendant that in addition to the claimants onus to prove the alleged act or omission, they have sought declaratory reliefs upon which orders for perpetual injunctions are sought and an order to set aside the implementation of the tenure policy as contained in Rule 020909 of PSR 2021. That it is an established principle of law that reliefs which are declaratory must be based on certain conditions of law, citing CBN v. Jacob Oladele Amao & 2 ors [2011] Vol. 201 LRCN, which, relying on Chukwumah v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 12, laid down the conditions as including:

(a) A declaration will be granted even when the relief has been rendered unnecessary by lapse of time for the action to be tried, if at the time the action was brought, it raised substantial issues of law.

(b) The claim to which the declaratory relief relates must be substantial; that is, the plaintiff must be entitled to the relief in the fullest meaning of the word.

(c)A declaration will only be granted where there is a breach.

(d) The plaintiff must establish a right in relation to which the declaration can be made hence the court will not generally decide hypothetical questions.

(e) The relief claimed must be something which would not be unlawful or unconstitutional or inequitable for the court to grant.

(f) The relief should also not be contrary to the accepted principles upon which the court exercises its jurisdiction.

 

97. To the 2nd defendant, there has been no breach of the provisions of the law as envisaged by this suit. That in the event that declaratory reliefs sought by the claimant are granted to him, it will set unlawful dangerous precedent to prevent and restrain the office of the 1st defendant and the Federal Government of Nigeria, in the exercise of their statutory duties. That the position of the courts have overtime set out the principle that “he who asserts must prove”, referring to INEC v. Ituma [2013] 11 NWLR (Pt. 1366) 494 where the Supreme Court stated that the claimant cannot rely on the weakness of the 2nd defendants case. He must prove sufficiently with material facts and evidence in order to back up his case. That all exhibits submitted by the claimant have not shown that the claimant was discriminated against by the defendants and especially the 2nd defendant. They have in fact supported the case of the 2nd defendant upon the suspension of the tenure policy, and the reactivation of the Tenure Policy code the Revised PSR 2021.

 

98. That the court also stated in Hon. Chief Ogbuefi Ozomagbachi v. Mr Dennis Amadi & ors [2018] LPELR-4551(SC) that parties are bound by their pleadings and parties cannot embark on fresh arguments different from their initial arguments because the case must retain its original intent. Therefore, to the 2nd defendant, the claimant has failed to establish through evidence that this suit can be maintained as it lacks substance in their arguments and throughout their processes.

 

99. The 2nd defendant also referred to Mohammed v. Wammako [2018] 7 NWLR (Pt. 1619) 573 where the Supreme Court held that: “The law is settled that in a claim for declaratory reliefs, the Plaintiff must prove his entitlement to such declaratory relief by cogent and credible evidence”. That examining the facts as stated by the claimant in relation to Rule 020909 of PSR 2021, which was allegedly implemented to discriminate against him, the claimant has not disclosed with sufficient evidence in any way that the rule of law has been tampered with to warrant the basis for instituting this action. That the facts of this case have not proved in any way that the declaratory reliefs, based upon the alleged non-compliance with the above sections, should be sought against the 2nd defendant.

 

100. The 2nd defendant went on that the 1st defendants statutory power to implement the Rules was solely based on approval of the Federal Executive Council through a circular of the 1st defendant. Ultimately, that the implementation this suit challenges cannot be said to be invalid. Therefore, declaratory reliefs (1), (2) and (3) sought by the claimant should be discountenanced in its entirety, urging the Court to so hold. Furthermore, that the claimant has not established how he is entitled to the reliefs sought against the defendants, particularly when reliefs (4) and (5) for perpetual injunctions punctured by the fact that declaratory reliefs sought by the claimant cannot stand having regard that the basis upon which the claimant claims has not been sufficiently proved by the claimant, urging the Court to so hold.

 

101. In conclusion, the 2nd defendant prayed this Court to dismiss this suit in its entirety as it lacks merit and substance.

 

THE CLAIMANT’S REPLY ON POINTS OF LAW

102. The claimants reply on points of law is as against the submissions of the two defendants.

 

103. On whether Exhibit 5, being a document, speaks for itself and can be given meaning other than its ordinary meaning, the claimant submitted that the defendants by their respective submissions erroneously argued to suggest that Exhibit 5 connotes an alteration/amendment to the 2008 PSR in the sense that it deleted Rule 020810(iv)(a) & (b), which compulsorily retires a Director after 8 years on the post. To the claimant, Exhibit 5 did not offer an amendment to the Public Service Rules but clearly suspended the tenure policy. That the implication is that any where the tenure policy is found in the Civil Service (including but not limited to the PSR) it automatically becomes ineffective.

 

103. The claimant went on that the operation of the suspension of the tenure policy via Exhibit 5 cannot be said to amount to an amendment of 2008 Public Service Rules as the content of Exhibit 5 cannot be interpreted to mean deleting Rule 020810(vi) (a)(b) but to suspend its operation. Little wonder while the same provision was repeated in Exhibit 6 without special approval and deliberation of the Federal Executive Council. That the law is settled that in the interpretation of documents, words must be given its ordinary and clear meaning, citing EDOSACA v. Osakue [2018] 16 NWLR (Pt. 1645) 199. And that parties cannot read into a document what was not contained therein.

 

104. On the application of the doctrine of estoppel, the claimant submitted that from the line of reasoning of the learned counsel to the 1st defendant, it appears the defendants totally misplaced the crux of the claimants case. That the claimant in this suit is not challenging the validity of the PSR 2021 or the power of the defendants to amend same, but has challenged the implementation

 

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of the tenure policy contained therein in view of the subsisting suspension of the tenure policy by Mr President communicated via Exhibit 5. That it is not in contention that although the tenure policy was captured in the 2008 edition of the PSR, the defendants did not implement it in view of the subsisting suspension of the policy by the President in 2016. That the defendants have equally failed to implement the tenure policy after the amendment of 2021 in view of the suspension of the policy. That one would only be left in a state of bewilderment as to why the defendants suddenly commenced the implementation of the policy without first ensuring that the suspension is first lifted by the defendant.

 

105. The claimant continued that “while we are in agreement with the 1st Defendant as per the argument in paragraph 3.07 of the preliminary objection, we submit that having regard to the fact of this case, this principle is more applicable in support of the Claimants’ case than as a Defence to the Defendants”.

 

106. The claimant went on that the rule of estoppel is based on equity and good conscience, the object being to ensure honesty and good faith thereby securing justice between the parties. That estoppel is explained as a rule where a person shall not be allowed to say one thing of one time and the opposite of another time. It is, therefore, wrong and inequitable for the defendant to, by his own directive, suspend the tenure policy and commence implementation without first lifting the suspension. Furthermore, that by the doctrine of estoppel the defendant cannot reintroduce tenure policy into the Civil Service until the suspension is lifted. That the defendant, by his actions and words as contained in Exhibit 5, cannot recommence the implementation of the tenure policy in the Civil Service without ensuring the vacation of the suspension directive by the President.

 

107. To the claimant, the issue here is straight forward. The principle of estoppel raised by the defendant is totally inapplicable as a defence. That this is “because the Defendant has not provided evidence to show that any of the claimants have benefited from the implementation of the tenure policy, by collecting their terminal benefit or benefited in anyway whatsoever, as such, the principle raised cannot be sufficient as a Defence to the Defendant”. That it should be noted that the application of the doctrine of estoppel to the fact of this case will mean that the defendants who have for over 8 years suspended the tenure policy cannot suddenly commence the implementation without due process of law. That estoppel does not lie in mere imagination or assertion, there must be facts proven which will give rise to estoppel, citing Greenwood v. Martins Bank Ltd [1933] AC 51 at 57, where Lord Tomlin defined the essential factors as:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made.

(2) An act or omission resulting from the representation whether actual or by conduct by the person to whom the representation is made.

(3) Detriment to such person as a consequence of the act or omission.

 

108. That in AG Rivers State v. AG Akwa lbom State & anor [2011] LPELR-633(SC), the Supreme Court again elucidated thus:

 

The doctrine of estoppel by conduct, though a common law principle has been enacted into our body of laws as Section 151 of the Evidence Act. It is in these terms: “When one person has, by his declaration, Act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief (a thing to be true and to act upon such belief), neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person's representative in interest, to deny the truth of that thing”.

 

109. It is the submission of the claimant that, also called “estoppel in pais”, this common law principle, which, as shown above, has gained statutory acceptance in Nigeria, forbids a person from leading his opponent from believing in and acting upon a state of affairs, only for the former to turn around and disclaim his act or omission. That both the common and statutory law do not permit this conduct. That is why section 151 of the Evidence Act has used the emphatic phrase “neither he nor his representative in interest shall be allowed…”

 

110. The claimant continued that this principle was explained better in Ude v. Osuji [1998] 10 SCNJ 75 at 22 thus:

The principle of estoppel by conduct is that one party has, by his words or conduct, made to the other his words or conduct, a promise or assurance which was intended to affect the legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous. Legal relations as if no such promise or assurance has been made by him. He must accept their legal relation as modified by himself even through it is not supported in point of law by any consideration, but only by his word or conduct.

 

111. Further referred to are Buhari v. INEC [2009] All FWLR (Pt. 459) 419 at 517 and section 169 of the EvidenceAct 2011.

 

112. That it should also be mentioned that an estoppel cannot be set up if its establishment results in preventing the performance of constitutional and statutory duties. Similarly, it must fail if its establishment must result in illegality. That since the Federal Executive Council cannot overrule Mr President by restoring the tenure policy, it is therefore illegal to recommence the implementation of the tenure policy without the directive of Mr President.

 

113. Interestingly, that Rule 020810(iv)(a) and (b) of the 2008 PSR was not expunged from the Public Service Rules 2008 but same became ineffective following the suspension of the tenure policy by the President. That “the claimants have structured their lives and affairs” based on the directive of the defendant communicating the suspension of the tenure policy, as such, the defendant cannot be allowed to state otherwise.

 

114. More so, that “as President re-affirming the suspension of the tenure policy having rejected the recommendation contained in exhibit HOS 2. It leaves room wonder why the Tenure Policy was never discussed by the Federal Executive Council as an item to be amended/reviewed in the Federal Executive Council meeting. See Exhibit HOS 4B and 4C”.

 

115. That “the Claimants have adduced evidence and legal argument to support their case”, urging the Court to hold this case meritorious. Thus, the need for parties to return to status quo ante bellum by which "the claimants are to enjoy all benefits as bonafide staff of the 1st Defendant”. Furthermore, that the Court should “grant all our reliefs in the interest of justice”.

 

COURT’S DECISION

116. I took time to consider the processes and submissions of the parties before the Court. Before delving into the merit of the case, I need to point out certain shortcomings in the written addresses of the parties, which should not be in the first place.

 

117. Firstly, at page 24 of the 1st defendants written address would be found paragraphs 6.14 and 6.15. These two paragraphs are repeated at page 25.

 

118. Secondly, the written address of the 2nd defendant is not paged; and paragraphs 2.0, 2.1, 2.2 and 2.3 are repeated all contrary to Order 45 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), which provides that “a Written Address shall not be more than thirty-five (35) pages, set out in paragraphs and numbered serially…”

 

119. Thirdly, all through the claimants reply on points of law, the claimant talked as if there were more than one claimant in this suit. He kept referring to claimants in the plural. See, for instance, paragraphs 2.1, 2.2, 2.4, 2.7, 2.12 and 2.14 of the reply on points of law. And of the defendants, he spoke in some paragraphs as if there was only one defendant in the suit, whereas they are two. See, for instance, paragraphs 2.3, 2.5, 2.6, 2.7 and 2.12 of the reply on points of law.

 

120. Fourthly, in paragraph 2.4 of the reply on points of law, the claimant wrote thus: “While we are in agreement with the 1st Defendant as per the argument in paragraph 3.07 of the preliminary objection, we submit that having regard to the fact of this case, this principle is more applicable in support of the Claimants’ case than as a Defence to the Defendants”. There is no preliminary objection before the Court in this suit. So, I do not know which preliminary objection the claimant is talking about here.

 

121. Lastly, In paragraph 1.2 of the reply on points of law, the claimant referred to Exhibit 6 in his submission. There is no Exhibit 6 before the Court in this suit.

 

122. The 1st defendant had prayed this Court to discountenance paragraphs 7, 8, 14 to 18 and 20 of the further and better affidavit of the claimant as they are arguments and conclusions, and so offend section 115 of the Evidence Act 2011. By paragraph 7, the claimant averred that he knows as a fact that the Federal Executive Council (FEC) cannot overrule the President. This is a conclusion.

 

123. In paragraph 8, the claimant averred that Rule 020810(iv)(a) and (b) of PSR 2008 was suspended following the suspension of the tenure policy by the President. This is an argument.

 

124. In paragraph 14, the claimant averred that given Exhibits HOS 4B and 4C, the tenure policy was never discussed by the FEC as an item to be amended/reviewed. This is an interpretation and a conclusion, meant only for the Court.

 

125. In paragraph 15, the claimant averred that having seen the FEC extract, the tenure policy was not listed as one of the items to be amended or reviewed in the PSR 2008 review or amendment. This is an interpretation and a conclusion, meant only for the Court.

 

126. In paragraph 16, the claimant averred that the tenure policy was smuggled into the PSR 2021 after deliberation and approval of the listed items for review by the FEC. This is an interpretation and conclusion.

 

127. In paragraph 17, the claimant averred that the advent of PSR 2021 cannot and did not in any way invalidate the Presidential directive on the suspension of the tenure policy. This is a conclusion and an argument.

 

128. In paragraph 18, the claimant averred that the directive of the President, suspending the tenure policy, was never restricted to the PSR but to all policy relating to tenures in the Federal Civil Service. This is a conclusion and an argument.

 

129. In paragraph 20, the claimant averred that the re-introduction of the tenure policy was never approved by the President or the FEC. This is a conclusion.

 

130. Additionally, there is no evidence before the Court showing that the claimant is a member of the Executive Council of the Federation as to confer on him the factual knowledge that enabled him to make the averments he did as per paragraphs 7, 8, 14 to 18 and 20 of his further and better affidavit. His averments in paragraphs 1 and 2 of his further and better affidavit as to his being familiar with, and abreast of, the facts of this case as well as the facts which gave rise to the filing of the further and better affidavit cannot confer on him the knowledge of what actually transpired at the meetings of the Executive Council of the Federation.

 

131. In all, I agree with the 1st defendant that paragraphs 7, 8, 14 to 18 and 20 of the further and better affidavit of the claimant offend section 115 of the Evidence Act 2011. The law is that such offending paragraphs of an affidavit are to be expunged and discountenanced. See Ibzan Yila v. Hamma Bilal & ors [2023] LPELR-59778(CA) and Dr Stephen Adi Odey v. Chief John Alaga & ors [2021] LPELR-53408(SC). Accordingly, paragraphs 7, 8, 14, 15, 16, 17, 18 and 20 of the claimants further and better affidavit are hereby struct out. I so rule.

 

132. As I indicated at the start of this judgment, the claimant came to this Court by way of an originating summons. He posed three questions for the determination of this Court, which three questions I also reproduced much earlier in this judgment. Now, the 1st defendant made an issue as to the manner in which the claimant posed the three questions. To the 1st defendant, they depict the contradictory nature of the claimants case; and that the claimants case as presented in the three questions for determination has no locus or direction.

 

133. A close look at especially questions (2) and (3) will show some assumptions on the part of the claimant. In question (2), the claimant assumes, and hence concludes, that the tenure policy is discriminatory. And yet, the claimant is asking this Court to determine that very question. In concluding that the tenure policy is discriminatory, what answer is the claimant expecting from the Court? Does the claimant just want the Court to confirm his conclusion?

 

134. In question (3), the claimant assumes, and hence concludes, that the PSR 2021 applies retroactively and discriminatorily against him, and so is an unfair labour practice. My comments just made regarding question (2) equally apply here. But more importantly, in bringing the issue of unfair labour practice in question (3), the claimant lost it as matters of unfair labour practices are best litigated vide complaints, not originating summons. As I will point out later, the claimants affidavit in support of the originating summons is particularly destitute in its averments to support the claims for discrimination under questions (2) and (3). This is the sense in which the defendants argue that the claimant did not prove his case to warrant the reliefs he claims being granted to him.

 

135. I have in previous decisions cautioned counsel against the use of originating summons as quick-fixes for litigating labour/employment disputes. His Lordship Ugo, JCA (delivering the leading judgment) in University of Jos & anor v. Victor Aro [2019] LPELR-46926(CA), relying on Olley v. Tunji [2013] 10 NWLR (Pt. 1362) 275 at 322, had generally cautioned and held thus:

…formulation of questions for determination is central to the validity of an originating summons…and it is essential that the particular question of construction between the parties be clearly identified in the body of the summons…

 

………………….

 

…the originating summons without the questions on which to predicate the declarations sought is incompetent and by extension the lower Court had no jurisdiction in the matter. The originating summons was not commenced by due process of law. The issue of question or questions for determination in an originating summons is a question of substance…

 

136. A fortiori, if the absence of questions to be determined makes an originating summons incurably defective, badly drafted questions would equally affect the outcome of the case in an originating summons proceedings. And so the originating summons procedure strictly restricts the claimant to just the questions posed and the affidavit evidence presented. For instance, in Dr Dave Nwabor v. Oilflow Services Limited unreported Suit No. NICN/LA/552/2015, the judgment of which was delivered on 10 July 2017, this Court held thus at paragraph 39:

The claimant is calling on this Court to grant him N5 million being 5 months’ salary owed to him, interest on the said sum, general and aggravated damages and cost of this action. In the main, however, the claimantscase is of salary owed to him. The claimant is making this claim after resigning from the employment of the defendant. For all his claims, the claimant did not come by way of a complaint; he came by way of an originating summons. In choosing to come by way of an originating summons, the claimant has delimited his case to just the question he posed and the reliefs he seeks. See Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA). This, of course, will be only within the limits of his affidavit evidence since by law having to come by way of originating summons instead of a complaint does not signify that the case is incompetent. See Mahmud Bayo Alabidun v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014, the judgment of which was delivered on 30th January 2015. As enjoined by NJC v. Hon. Justice Jubril Babajide Aladejana [2014] LPELR-24134(CA), therefore, the resolution of the instant case (since it is an originating proceedings) must be restricted to the issues raised in the originating summons. See also Dr Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which delivered on 25th April 2017, where the claimant chose to litigate his suspension via an originating summons instead of a complaint, and thereby delimited the scope of recovery.

 

137. It appears that counsel are not ready to heed this advice.

 

138. From what I gathered, the claimants case is that Exhibit 4 dated 20 July 2016, which suspended the application of the tenure policy in the Federal Civil Service (despite that it was provided for in the Public Service Rules 2008) was still applicable despite that Exhibit 5 dated 27 July 2023 directed “full compliance with all provisions of the Public Service Rules (PSR) 2021”. The PSR 2021, like the PSR 2008, retained the tenure policy.

 

139. The PSR 2008, in providing for “compulsory retirement”, stated thus in Rule 020810:

(i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.

(ii) No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.

(iii) The provision of (i) and (ii) of this Rule is without prejudice to prevailing requirements for Judicial Officers and Academic Staff of Universities and other tertiary institutions who retire at 70 and 65 years respectively.

(iv) Provided the officer would not have attained the retirement age of 60 years or spent 35 years of pensionable service, whichever is earlier:

(a) a Director shall compulsorily retire upon serving eight years on the post; and

 

 

 

(b) a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more.

 

140. What should be noted from Rule 020810 of PSR 2008 is that the tenure policy was incorporated in the provision dealing with “compulsory retirement” as Rule 020810(iv), which tenure policy was provided as a proviso to the provisions on compulsory retirement. It was the application of this tenure policy that was suspended for the Federal Civil Service vide Exhibit 4. The applicability of this 2008 tenure policy was affirmed by the Court of Appeal in Mr Steve Olusoji Bamidele Olusa v. National Institute for Cultural Orientation & ors [2022] LPELR-57459(CA), a case cited and relied on by the claimant, when the Court held that the suspension of the policy vide the instant Exhibit 4 cannot operate retrospectively. See also Ambassador D. C. B. Nwanna v. National Intelligence Agency & 2 ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16 December 2013, the very first case where this Court considered, interpreted and applied the 2008 tenure policy.

 

141. Under the PSR 2021, Section 9 of the PSR 2021 deals with “Leaving the Service”. Rule 020908 of the PSR 2021 then provides for mandatory retirement (note that the 2008 PSR uses the phrase, “compulsory retirement”) in these words:

(i) The mandatory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier.

(ii) No Officer shall be allowed to remain in Service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.

(iii) The provision of (i) and (ii) is without prejudice to prevailing conditions of service for Judicial Officers, Academic Staff of Universities and other Officers whose retirement age is at variance with (i) and (ii) above.

 

142. Rule 020909 of the PSR 2021 proceeds to make a separate provision for the tenure policy in these words:

A Director or its equivalent by whatever nomenclature it is described in MDAs shall compulsorily retire upon serving eight years on the post; and a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more.

 

143. A comparison between Rule 020810 of PSR 2008 and Rule 020909 of the PSR 2021 will show that under the PSR 2021, the tenure policy is no longer merely a proviso. It is a full fledged Rule, with a life of its own. That this is so, must be a deliberate act of the drafters. There are other noticeable differences in choice and arrangement of words when Rule 020810 of the PSR 2008 is compared with Rules 020908 and 020909 of the PSR 2021. This too is deliberate. So when Exhibit 5 enjoined “full compliance with all the provisions of the Public Service Rules (PSR) 2021”, this must be read in its ordinary meaning i.e. that all the provisions of PSR 2021 including Rule 020909 must be complied with, with effect from 27 July 2023. Any other interpretation cannot be in consonance with the ordinary meaning of Exhibit 5. I so hold.

 

 

144. The claimant had argued that the 1st defendant cannot overrule Mr Presidents directive given in the circular dated 20 July 2016 (Exhibit 4); and so the 1st defendants directive reintroducing the tenure policy via the circular of 27 July 2023 (Exhibit 5) is illegal and, therefore, unimplementable. To the claimant, the 1st defendant remains subject to the directive of his principal, Mr President, and so cannot take any decision capable of overriding or conflicting with the directive already issued by the President. Here, I must say, the claimant assumes that the 1st defendant acted on his own, independent of Mr President in reintroducing the tenure policy in 2023.

 

145. The claimant had also submitted that the Federal Executive Council cannot overrule Mr President by restoring the tenure policy. As such, that it is illegal to recommence the implementation of the tenure policy without the directive of Mr President. The claimant gave no authority to the Court for this proposition. I wonder what point the claimant seeks to make here. Where an Executive Council of the Federation meets, with Mr President presiding, and a decision is taken as to a policy as enjoined by section 148(2)(a) of the 1999 Constitution, would that be a case of the Executive Council of the Federation overruling Mr President? Even where Mr President did not preside over the meeting of the Executive Council of the Federation, as where the meeting is presided by the Vice President, would the Executive Council of the Federation be said ti have overruled Mr President especially where he ratifies any policy adopted at the meeting?

 

146. The PSR 2021 attached to Exhibit 5 boldly has it that it was “approved by the Federal Executive Council on 29th September, 2021”. The Foreword to the PSR 2021 is endorsed as signed by “Muhammadu Buhari, GCFR, President of the Federal Republic of Nigeria, State House, Abuja”. The last two paragraphs of the Foreword read thus:

I urge all Pubic Servants to acquaint themselves with these Rules and Regulations as well as other extant laws to enable them to become Efficient, Productive, Incorruptible and Citizen-Centered Public Servants.

 

Lastly, I commend the Head of the Civil Service of the Federation, all Public Officers and other stakeholders who had worked tirelessly to bring the 2021 Edition of PSR into fruition.

 

147. With the above commendation and urging, where does the issue of overruling Mr President come from? And how can the claimant even think of it as to bring it up as an argument? The argument of the claimant in that regard is as bizarre as it is wishful thinking. I reject it and so discountenance it.

 

148. The claimant had relied heavily on Olusa v. NICO & ors [2022] LPELR-57459(CA), a case in which, according to him, the Court of Appeal per Adah, JCA (as he then was) acknowledged the proactive application of the tenure policy; for which the claimant, who is privileged to be in service after the suspension of the policy on 17 June 2016, qualified to enjoy the said suspension of the policy. The claimant would further submit that retrospective reintroduction of the tenure policy is illegal and unenforceable. I note that Olusa was quite emphatic when it held that “By all means, the circular suspending the operation of the Tenure Policy can only be applicable to those who were still in service at the time of the suspension” and “It is a cardinal rule of our law that no legislation shall be construed to have retrospective operation unless such is expressly stated in the law”. Is Rule 020909 of the PSR 2021 being applied retrospectively in this case? The answer is NO. Is the circular suspending the tenure policy a subsisting circular as to remain binding? This remains the question. The claimants argument is that it remains binding.

 

149. The claimant cited and relied on Shitta-Bey v. AG, Federation & anor [1998] LPELR-3055(SC), which held that there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. Everything points to the fact that Mr President approved the PSR 2021. Mr President is the Chairman the Executive Council of the Federation that approved the said PSR 2021. I quoted earlier from the Foreword to the PSR 2021 signed by Mr President, where he urged all Public Servants to acquaint themselves with the PSR. Exhibit HOS 4A dated 7 October 2021 of the 1st defendant shows that the Memorandum to the Executive Council of the Federation which led to the approval of the PSR 2021 was actually from Mr President. Exhibit HOS 4B is the actual Memorandum EC(2021)238 from Mr President; and it is initialed by Mr President as P.M.B.” on 2 September 2021. Exhibit HOS 4C is the minutes of the meeting of the Executive Council of the Federation held on 29 September 2021 and chaired by the Vice President where Memorandum EC(2021)238 from Mr President praying for the adoption of the PSR 2021, which was then considered and approved. In particular, the provisions as to “Appointment and Leaving the Service” under which would be found Rules 020908 and 020909 of the PSR 2021 were considered and approved. All of this does not suggest any disapproval by Mr President of the application of the tenure policy.

 

150. The argument of the claimant that there has to be a specific lifting of the suspension of the tenure policy is unfounded as nothing was placed before the Court to show that the tenure policy under the PSR 2021 will apply only when the suspension of the policy initially made was specifically lifted. In any event, it may as well be logically argued that if the suspension of the tenure policy was still subsisting, why did Mr president not reverse the directive retiring the claimant? I must stress that the directive to suspend the tenure policy vide Exhibit 4 was communicated by the 1st defendant. When the claimant was appointed a Permanent Secretary vide Exhibit 2 dated 12 November 2015, it was the 1st defendant who communicated same to the claimant. In all this, the claimant did not question the authority of the 1st defendant to make the communications. So when vide Exhibit 5 dated 27 July 2023, the 1st defendant instructed full compliance with the PSR 2021, why is the claimant now complaining and questioning the authority of the 1st defendant to issue such an instruction? I wonder.

 

151. In Exhibit 5, the 1st defendant wrote thus:

Following the approval of the revised Public Service Rules (PSR) by the Federal Executive Council (FEC) on the 27th of September, 2021 and its subsequent unveiling during the Public Service Lecture in commemoration of the 2023 Civil Service Week, the PSR has become operational with effect from 27th July, 2023.

 

2. You are, therefore, to ensure full compliance with all provisions of the Public service Rules (PSR) 2021.

 

3. Please, ensure strict compliance with the contents of this circular.

 

152. The things to note from Exhibit 5 and all I have said so far are:

(a) The PSR 2021 was approved by the Executive Council of the Federation. This is in consonance with section 148(2)(a) of the 1999 Constitution, which provides that the President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of determining the general direction of domestic and foreign policies of the Government of the Federation. Mr President is the Chair of this body. He often chairs the meetings except where he is absent, in which event the Vice President would chair as Exhibit HOS 4C shows. See generally section 148 of the 1999 Constitution.

(b) The PSR became operational on 27 July 2023.

(c) All the provisions of the PSR 2021 were to be complied with; and the compliance was to be strict (emphasis is the Courts).

(d) So, when it was instructed that all the provisions of the PSR 2021 were to be complied with, did this suggest the operation of any suspended provision? The answer is NO. If the intention was that suspended provisions were to remain suspended, would the instruction in Exhibit 5 not have stated so? I strongly think so.

 

153. In paragraph 1.2 of the reply on points of law, the claimant argued that Exhibit 5 cannot be interpreted to mean deleting Rule 020810(vi)(a) and (b) but to suspend its operation; and that little wonder while the same provision was repeated in Exhibit 6 without special approval and deliberation of the Federal Executive Council. To start with, as I indicated earlier, there is no Exhibit 6 before the Court in this suit. If the argument of the claimant is that there was no special approval for the lifting of the suspension of the tenure policy, then that argument is unfounded and baseless as I indicated earlier.

 

154. On the whole, as far as question (1) posed by the claimant is concerned, I am not convinced by the argument of the claimant that the tenure policy remains suspended. I must thus answer the said question (1) against the claimant, and hold that the suspension of the tenure policy has been done away with by the PSR 2021 as brought into force by Exhibit 5. Accordingly, the tenure policy is now in force and so operational since 27 July 2023. All acts implementing the tenure policy since 27 July 2023 are accordingly valid. I so rule.

 

155. Questions (2) and (3) posed by the claimant are hinged on his claim for discrimination. The claimant argued that the tenure policy as applied to him by the defendants was discriminatory and so infringes his right under section 42 of the 1999 Constitution. In opposing this argument, the 1st defendant argued that the claimant cannot found his case in discrimination given that he did not situate his case on any of the grounds enumerated in section 42 of the 1999 Constitution.

 

In other words, the grounds of discrimination are closed and so no other ground, not listed in section 42 of the 1999 Constitution, can found an action in discrimination as far as section 42 of the 1999 Constitution is concerned. The 1st defendant relied on Uzoukwu v. Ezeonu II [1991] 6 NWLR (Pt. 200) 708 at 779 - 780. Specifically, that the tenure policy is not one of the grounds of discrimination listed in section 42 of the 1999 Constitution. Is the 1st defendant right in this argument?

 

156. The answer lies in the manner section 42 of the 1999 Constitution is couched. The section provides that:

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person -

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Force or to an office in the service of a body corporate established directly by any law in force in Nigeria.

 

157. In Adeyemo Ayodele Omoniyi & ors v. University of Lagos unreported Suit No. NICN/LA/ 426/2016, the ruling of which was delivered on 29 March 2017, available at https:// nicnadr.gov.ng/judgement/judgement.php?id=1382 as accessed on 22 March 2024, this Court interpreted section 42(1) of the 1999 Constitution in these words:

[12] I now proceed to the merit of the preliminary objection. The issue before this Court is whether it has jurisdiction over this case. The claimants think that this Court has the jurisdiction. The defendant thinks not giving two reasons: …the second that the claimants did not framed (sic) their case within any of the prohibited grounds listed in section 42(1) of the 1999 Constitution given the manner in which relief (1) is couched. I start off with this second reason. The defendant relied on section 42(1) of the 1999 Constitution, which provides that “a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person” be discriminated or subjected to disabilities or restrictions on those grounds. This provision does not state that the categories of the grounds of discrimination are closed. Even in using the word “only” in section 42(1), it must be appreciated the context in which it is used. The provision that “a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person” means that citizens without more cannot be discriminated on just the ground that he/she is of a particular community, ethnic group, place of origin, sex, religion or political opinion. The statement cannot be read to mean that these grounds of discrimination are the only grounds of discrimination. In other words, it cannot be read to mean that discrimination on grounds other than the listed out would thereby be valid and legal (and so not remediable in law) simply because the discrimination was not done on any of the listed constitutional grounds. To uphold the argument of the defendant would mean, for instance, that albinos discriminated against as albinos or a worker with HIV/ AIDS discriminated against as such would have no remedy in law. May be, if the defendants argument is taken within the strict confines of constitutional law (even at this, I have my doubts as I have shown), as was the case in Festus Odafe & ors v. Attorney General, Federation & ors unreported Suit No. FHC/PH/CS/680/2003, where the Federal High Court held that there was no breach of the constitutional right against discrimination for a prisoner living with HIV/AIDS because the Constitution did not expressly state HIV/AIDS as a prohibited ground of discrimination, that conclusion may be reached, erroneously I dare say. The point is that even if an act, to go by the defendants argument, is outside of the constitutionally listed grounds for discrimination, there is nothing that says that it cannot be discriminatory on grounds recognized as such by other laws, other than the Constitution. Discrimination at the workplace encompasses actions of an employer way outside of the constitutionally listed grounds in section 42. Is the defendant saying that this Court, with its jurisdiction under section 254C(1) of the 1999 Constitution to apply international best practices, and Treaties, Conventions, Recommendations and Protocols pertaining to labour law and ratified by Nigeria, should turn a blind eye to such discriminatory practices simply because they are not listed in section 42 of the Constitution? I do not think the defendant gave this issue a second thought before advancing its argument. I must accordingly discountenance the defendants argument on that score…

 

158. As can be seen, the word, “only” used in section 42(1) of the 1999 Constitution does not delimit the grounds of discrimination listed in the said section. I do not accordingly agree with the 1st defendant that the grounds of discrimination are closed in section 42 of the 1999 Constitution. For emphasis, I wish to reiterate what I said in Adeyemo Ayodele Omoniyi & ors v. University of Lagos:

The provision that “a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person” means that citizens without more cannot be discriminated on just the ground that he/she is of a particular community, ethnic group, place of origin, sex, religion or political opinion. The statement cannot be read to mean that these grounds of discrimination are the only grounds of discrimination. In other words, it cannot be read to mean that discrimination on grounds other than the listed out would thereby be valid and legal (and so not remediable in law) simply because the discrimination was not done on any of the listed constitutional grounds.

 

159. I now turn to the question whether questions (2) and (3) posed by the claimant can be answered in his favour. Paragraph 20 of the claimants affidavit in support of the originating summons states thus:

I also know that the reintroduction of the suspended tenure policy is discriminatory against me as other permanent secretaries before us, served in the federal civil service until they attain the retirement age of 60 years or 35 years of pensionable service.

 

160. This is the only piece of evidence that supports the claimants claim on discrimination as per questions (2) and (3) posed by the claimant, and reliefs (2) and (5) he claimed. Who in fact are the Permanent Secretaries before the claimant that the claimant mentions for comparison? His affidavit is silent on this.

 

161. In paragraphs 3.5 and 3.6 of the claimants written address in support of the originating summons, the claimant argued thus:

3.5. My lord, by the affidavit in support of the Originating Summons, the Claimant has shown that the Tenure Policy did not apply to several Directors and permanent secretaries before him and other permanent secretary that are still serving in the Federal Civil Service. It is also interesting to observe that the defendant has failed to issue any guide for the implementation of the policy, thus, the malicious implementation.

3.6.      The 1st defendant having refused to implement the tenure policy on the other permanent Secretaries and directors in the health sector cannot single out the Claimant for the purpose of implementation of the policy in total violation of section 42(1) of the Constitution…

 

162. No where in the supporting affidavit did the claimant aver to anything about health sector Directors and Permanent Secretaries. So, the submissions in that regard are simply counsel giving evidence in a written address. The law is quite clear that no matter how brilliant or attractive a counsels address may be, it is not a substitute for credible or solid pleadings or evidence. See Nig. Arab Bank Ltd v. Femi Kane Ltd [1995] 4 NWLR (Pt. 387) 100, Chukwujekwu v. Olalere [1992] 2 NWLR (Pt. 221) 86, Ajayi v. Total Nigeria Plc [2013] LPELR-20898(SC), Adam v. Shaibu & ors [2016] LPELR-40179(CA) and Okwejiminor v. Gbakeji & anor [2008] LPELR-2537(SC). Citing several anti discrimination provisions of international instruments and concluding that this Court is bound by them as the claimant did in paragraph 3.4 of his written address will not help the claimant here once he is deficient in bringing to the fore the relevant facts needed to apply the law to.

 

163. I need to stress that an action hinged on discrimination is one that conjures up a comparison in the application of rights and privileges. A claimant cannot claim that he has been discriminated against unless by concrete and credible evidence he shows that identified others were treated more fairly and better than he was or is being treated. Without this comparative evidence, the claim for discrimination cannot stand. A blanket statement that health sector Directors and Permanent Secretaries were treated differently is not concrete enough evidence for this purpose.

 

164. The claimants reliance on Lafia LG v. Gov, Nasarawa State [2012] 17 NWLR (Pt. 1328) 94 also reported as Lafia Local Government v. The Executive Government Nasarawa State & ors [2012] LPELR-20602(SC) is of little assistance in this regard. In Lafia LG the policy statement held to be discriminatory was general and applied as such. The policy in issue required all unified local government staff serving in local government councils other than their councils of origin to relocate to their local government councils of origin, while staff who were not of Nasarawa State origin to remain where they were working. This is a policy directive that discriminates on face value. In the instant case, however, there is no such discrimination as far as Exhibit 5 is concerned. Exhibit 5 did not direct compliance with the PSR by only some public servants and not others. It called for strict and full compliance. No exceptions were indicated. In fact, the general application of the tenure policy to all Permanent Secretaries is even acknowledged by the claimant in paragraph 15 of his affidavit in support. In the said paragraph 15, the claimant averted that “the head of service has now in the revised Public Service Rules amended the retirement age to make it mandatory for permanent secretary (including the Claimant) to retire after serving 4 year notwithstanding that fact that claimant have not attained 60 years of age or serve for 35 years…”

 

165. When in paragraph 20 of the supporting affidavit the claimant averred that the reintroduction of the suspended tenure policy is discriminatory against him simply because other Permanent Secretaries before him had served in the Federal Civil Service until they attained the retirement age of 60 years or 35 years of pensionable service, the claimant seems to have easily forgotten that this was because the suspension of the tenure policy was in force then. Once the suspension was overtaken by the 2021 PSR, the rule was not applied on only the claimant. The rule applies to all Directors and Permanent Secretaries, as the case may be. This cannot thus be a ground for a discrimination claim.

 

166. Additionally, when the claimant submitted that the tenure policy was not applied to health sector Directors and Permanent Secretaries, it behoves on him to give by way of concrete and credible evidence who these specific health sector Directors and Permanent Secretaries are for this Court to know and establish that in truth the claimant was treated discriminatorily. A blanket submission, as the claimants counsel did, is totally unhelpful to the claimants case of discrimination. I dare say that it is also misleading, a deliberate attempt at that to mislead the Court. I so rule.

 

167. There is one other issue the claimant did not allude his mind to even though the 2nd defendant did. And this relates to section 42(3) of the 1999 Constitution, which, to the 2nd defendant, creates an exception to section 42(1) and (2) of the Constitution. By section 42(3), restrictions may be imposed regarding the appointment of any person to an office under the State. And because section 11(1)(b) of the Interpretation Act states that the power to appoint includes the power to remove or suspend, a fortiori, restrictions as to appointments would include issues of removal and suspension. And these, by section 42(3) of the 1999 Constitution, cannot amount to discrimination. The claimant did not factor this in his submissions.

 

168. On the whole, aside from the absence of facts upon which a claim in discrimination can be founded, I am not even satisfied that the claimant has shown to this Court that the tenure policy discriminated against him. The tenure policy is of general application to all Directors (by whatever name called) and Permanent Secretaries in the Public Service. I do not see how this is discriminatory of the claimant. I so hold.

 

169. The claimants case is accordingly without any merit whatsoever. All the questions he posed are answered against him; and the reliefs he claims all fail. The case of the claimant hereby fails and so is dismissed in its totality.