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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 10th December 2024                        

SUIT NO: NICN/ABJ/141/2023

 

Between:

 

1.        ACP Innocent N. Iloka

2.        ACP Joseph Ajana Aloefuna

3.        ACP Theophilus I. Ugwuoke                                                                       Claimants

4.        CSP Geoffrey A. Iorbee

5.        CSP Solomon O. Obi

 

And

 

1.   The Police Service Commission                 

2.   The Inspector General of Police                                                                 Defendants

3.   Force Secretary, Nigeria Police Force                                                                 

                                                                                                               

Representation:

Sir N. S. C. Okoro for the Claimants

Okoro Nnachi Ibiam, with him, Aisha Hassan Abdulkadir, for the 1st Defendant

 

JUDGMENT

In an Originating Summons filed by the claimants on 19th May 2023, they submitted two questions for determination by the court. The questions are:

1.      Whether in view of the 1st Defendant's letters dated the 25th day of October 2017, 22nd of June 2020 and Signal No: CE:2710/PS/V01.3/205 dated 1st June 1989, the Claimants' date of first appointment into the Nigeria Police Force, is to start counting from the 18th May 1992, when the Claimants were enlisted as Cadet ASPs (Force Entrants), and whether the Defendants can lawfully and forcefully retire the Claimants based on the Claimants' initial date of recruitment as Police Constables.

2.      Whether the Claimants unlawfully retired, are entitled to be reinstated into the service of the defendants and are to be paid all their salaries, allowances and other benefits upon their reinstatements from the period of their unlawful forceful retirements up to their correct and accurate expected date of retirements.

 

Upon the determination of the questions, the claimants sought the following reliefs:

1.      A Declaration that the decision of the 1st Defendant in her 24th plenary meeting, as it relates to the regularization of the date of the first appointment of the Claimants, to start counting from the Claimants' enlistment as Cadet ASPs, is valid and subsisting.

2.      A Declaration that the dates of the first appointment of the Claimants as Cadet ASP on 18th May 1992, after they were deemed to have resigned their earlier appointments as Police Constables, is not subject to review by the Defendants.

3.      A Declaration that the date of retirement of the Claimants, will start counting from the 18th May 1992, when they were enlisted as Cadet ASP (Force Entrant), in line with the 1st Defendant's 24th Plenary Meeting and letters dated 25th October 2017, 22nd June 2020 and Signal No: CE:2710/PS/Vol.3/205 dated 1st June 1989.

4.      A Declaration that the forceful retirement of the Claimants as follows:

               Names                                 date of forceful retirement

a.      ACP Innocent N. Iloka                               01/03/2019

b.      ACP Joseph Ajana Aloefuna                       01/02/2019

c.      ACP Theophilus I. Ugwuoke                       01/04/2018

d.      CSP Geoffrey A. Iorbee                               01/05/2016

e.      CSP Solomon O. Obi                                  01/05/2015

is unlawful, illegal, and unconstitutional given the decision of the Police Service Commission on the 27th and 28th September 2017 at its 24th Plenary meeting and Signal No: CE:2710/PS/VOL.3/205 dated 1st June 1989 to the effect that Cadet ASPs are to maintain the date of their appointment as Cadet ASPs as the date of their first appointment in the Nigeria Police Force.

5.      A Declaration that the Claimants can only be duly and lawfully retired from the Nigeria Police Force, commencing from their date of first appointment as Cadet ASPs, upon the mandatory age of retirement, given the decision of the Police Service Commission, on the 27th and 28th of September 2017 at its 24th Plenary meeting and Signal No:CE:2710/PS/VOL.3/205 dated 1st June 1989, as  follows:

     Names          expected date of retirement      condition of retirement

f.        ACP Innocent N. Iloka           24/12/2024        attainment of age

g.      ACP Joseph Ajana Aloefuna   25/02/2024       attainment of age

h.      ACP Theophilus I. Ugwuoke   21/09/2023       attainment of age

i.        CSP Geoffrey A. Iorbee          25/08/2022        attainment of age

j.        CSP Solomon O. Obi             29/05/2020        attainment of age

6.      An Order directing the Defendants to immediately reinstate the Claimants who were forcefully and unlawfully retired from the Nigeria Police Force, before their due retirement dates, back into the Nigeria Police Force, and be placed in their due ranks, just like their other mates by the 1st Defendant, the Police Service Commission.

7.      An order directing the Defendants to pay the Claimants forcefully and unlawfully retired from the Nigeria Police Force all their salaries, allowances and other benefits upon their reinstatements; from the period of their forceful retirements up to their correct and accurate expected date of retirement base on their attainment mandatory retirement age of 60 years.

8.      An order of directing the Defendants forthwith, to update the service records of the Claimants to reflect 18th day of May 1992, for Cadet ASP Course 17/92 (3/93) Force Entrant, as the date of their first appointment in line with the decision of the 1st Defendant in her 24th Plenary meeting, as it relates to the regularization of the date of first appointment.

9.      An order of injunction, restraining the defendants jointly and severally from unlawfully and prematurely retiring the claimants before completing their respective years of service base on their Cadet ASP Officers Appointment dated the 18/05/92.

 

The Originating Summons is supported with an affidavit, which was deposed to by the 1st claimant, and a written address. The claimants also filed a further affidavit and reply address on 24th January 2024. The further affidavit was also deposed to by the 1st claimant. In paragraphs 4 and 5 of the affidavit in support of the Originating Summons, the 1st claimant described the 1st defendant as the statutory body created by the Police Service Commission (Establishment) Act, 2001 and saddled with the powers to appoint, promote, dismiss, discipline and formulate guidelines in respect of all Police officers while the 2nd and 3rd defendants are saddled with the administrative functions of the Nigeria Police Force. From the affidavits filed by the claimants, the case of the claimants for which they sought determination of the questions in the Originating Summons is as follows:

 

CLAIMANTS’ CASE

The claimants are Police Officers of ASP Force Entrants Course 17/92 of the Police Academy, Kano. The claimants were initially recruited into the Nigeria Police Force as Police Constables on 1/3/1984; 1/2/1983; 1/4/1983; 1/5/1981 and 1/5/1980 respectively. In 1989, the defendants advertized vacancies for Assistant Superintendent of Police and Inspectors. Following the advertisement, rank and file officers with University Degrees who indicated interest and applied for the Cadet Program were directed to resign their initial appointment, as contained in the 2nd defendant's signal No. CE:2710/FS/Vol. 3/205 dated 1st June, 1989 [which is same as signal CE:2710/SKS/Vol. V/136- DTO:261340/06/89], and apply for the Cadet Program afresh like their civilian counterparts. Also, in the defendants’ signal AH.7970/PAB/58DTO:221535/05/89, they stated that successful officers who applied into the Cadet Program must resign their initial appointment and any of them who accepted the Cadet Appointment would be deemed to have resigned their initial appointment and cannot claim right and privileges over and above their civilian counterparts. Based on these Signals, it became the regular practice that when the defendants advertised for Cadet Programs under the same conditions, officers who were successfully appointed into the Cadet Program were deemed to have resigned their earlier appointment as Police Constables, and relinquished all rights and privileges attached to their earlier resigned posts as Police Constables.

 

In 1992, the Defendants also published an advertisement for Cadet Program 17/92 under the same conditions in the said Signals. The Claimants, who were initially recruited as Police Constables or rank and file, resigned their appointments or were deemed to have terminated their initial appointment in compliance with the defendants' signals by applying, going through screening and interviews, and were taken into the Police Academy on 18th May 1992 which they completed on 28th February 1994 as Cadet ASP (Force Entrants). Upon the claimants’ appointments as Cadet ASP Force Entrants Course 17/92, they were given new service numbers but they were not issued any letter of appointment by the 1st Defendant herein. In compliance with the Defendants' signals, the claimants duly resigned their initial Recruit Enlistment as Police Constables and took up a fresh Appointment as Cadet ASP Officers in May 1992. Accordingly, the dates of the claimants’ retirement are to be calculated from the date of their first appointment as Cadet ASP Officers in 1992. The claimants rose through the ranks in the NPF to their current ranks.  The last promotion of the 1st to the 3rd claimants was to the rank of Assistant Commissioner of Police (ACP) while the last promotion of the 4th and 5th Claimants was to the rank of Chief Superintendent of Police (CSP).

 

In the plenary meeting of the 1st defendant held on the 27th and 28th September 2017, it arrived at a decision that all officers (including the Claimants) who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointments into the cadet program are to maintain the date of their appointments as cadet officer as the date of their appointments. The 1st Defendant conveyed the decision to the 2nd defendant in a letter dated 25th October 2017 and directed the 2nd Defendant to implement the decision. The letter was received by the 2nd defendant on 14th November 2017. The 1st Defendant also wrote a letter dated 22nd June 2020 to the 2nd defendant to reiterate its decision reached at its 24th plenary meeting. Instead of the 2nd Defendant to abide by the decisions and directives of the 1st Defendant, the 2nd Defendant forcefully retired the Claimants on the basis of the date of their initial Enlistment as Police Constables. The claimants were forcefully retired on 1/3/2019, 1/2/2019, 1/4/2018, 1/5/2016 and 1/5/2015 respectively. The Claimants are entitled to serve for a period of 35 years or upon the attaining the age of 60 years calculated from the date of their appointment as Cadet ASP officers in 1992. Going by the dates of their enlistment as Cadet ASPs in 1992, the claimants are expected to retire on 24/12/2024, 25/2/2024, 21/9/2023, 25/8/2022 and 29/5/2020 respectively based on attainment of 60 years of age. The forceful retirement of the claimants is in contravention of the decision of the 1st Defendant in its 24th Plenary meeting of 27th and 28th September 2017.

 

The 1st claimant drew the attention of this court to the judgments given by this court in similar situations of forceful retirements of other Cadet ASP Officers where the court upheld the decision of the 1st Defendant in her 24th plenary meeting in relation to the regularization of the date of first appointment Cadet ASP Officers. The judgments were those delivered on 13th January 2021 in Suit No. NICN/ABJ/353/2019 and on 31st January 2023 in Suit No: NICN/ABJ/51/2022. He averred further that the Claimants who were unlawfully and forcefully retired before their retirement due dates are entitled to be reinstated into service from the date of their unlawful/forceful retirements to enable them to complete their years of service. The Claimants are also entitled to all their salaries, allowances and other benefits upon their reinstatements from the period of their unlawful forceful retirements up to the time of their actual date of retirement upon attainment of the mandatory age of 60 years or 35 years in service respectively. The Claimants are also entitled to periodic promotions, salary increments and allowances. Several documents were exhibited to the affidavit. They were marked respectively from Exhibit 1 to 22.

 

WRITTEN ADDRESS IN SUPPORT OF ORIGINATING SUMMONS

In the written address in support of the Originating Summons, the learned counsel for the claimants formulated this issue for determination: Whether taking into consideration the combined effects of section 6[1] & [2] of the Police Service Commission [Establishment] Act 2001 and Rule 020801 of the Public Service Rules 2008, the decision of the 1st defendant at its plenary meeting of 27th and 28th September 2017 in relation to maintaining date of appointment as Cadet Officers as the date of first appointment is valid in law.

 

In his submissions on the issue, learned counsel for the claimants argued that the 1st Defendant is the body statutorily empowered to take decisions and formulate policies affecting the Claimants. In the 24th plenary meeting of the 1st defendant on the 27th and 28th September 2017, the 1st Defendant considered several complaints and took the decision that all officers who were directed to resign their appointment as Non-commissioned officers before taking tip fresh appointment as Cadet officers are to maintain the date of appointment as Cadet officers as the date of their first appointment. This decision of the 1st Defendant is in line with its statutory responsibilities and duties and it was made pursuant to its powers in Section 6 (l) of the Police Service Commission (Establishment) Act 2001. In a letter dated 25th October 2017, the 1st Defendant made it clear to the 2nd defendant that the decision affects all officers with similar situation. The Claimants, being officers with similar situation, are therefore covered by the decision. The National Industrial Court has upheld the decision of the 1st defendant in the Judgment delivered in Suit No. NICN/ABJ/353/2019 between CSP SUNDAY OKUGUNI vs. POLICE SERVICE COMMISSION. By Section 6 (2) of the Police Service (Establishment) Act 2001, the 2nd and 3rd Defendants have no power to review such decision of the 1st defendant. The Defendants are bound by the decision of the 1st Defendant in its 24th plenary meeting and also by the decisions of this Court which affirmed the decision of the 1st Defendant.

 

Counsel submitted further that Rule 020810 of the Public Service Rules 2008 provides that compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier and 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. 35 years of pensionable service, as used in the provisions, is not the same as 35 years in active service. Counsel also cited the provisions of Rule 020801 (b) of the Public Service Rules and submitted that the decision of the 1st Defendant in her 24th Plenary meeting is consistent with the forfeiture by resignation of previous service which is also recognized by Rule 020801 (b) of the Public Service Rules. By Regulation 12 (1) of the Pension Reform Act 2004, only continuous and unbroken service shall be taken into account as qualifying service. Regulation 15 (2) of Pension Reform Act 2004 recognizes any declaration made under any other enactment service for the purpose of calculating qualifying service. The Public Service Rules has adopted and ratified Regulation 15 (2) of Pension Reform Act 2004 which deals with calculating qualifying service. Counsel argued that although the Pension Reform Act 2004 has been repealed by Section 117 (1) of the Pension Reform Act 2014, but Section 117 (4) has saved any regulation, order, requirement, certificate, notice, direction, decision, authorization, consent, application, request or thing made, issued, given or done under the repealed Act.

 

COUNTER AFFIDAVIT OF THE 2ND AND 3RD DEFENDANTS

The 1st defendant did not file a counter affidavit to defend the Originating Summons. However, the 2nd and 3rd defendants filed a joint counter affidavit to the Originating Summons on 18th October 2023, and it was accompanied with a written address. The counter affidavit was deposed to by Gregory Woje, a clerk in the legal/prosecution section of the Force Criminal Investigation Department. In paragraphs 6 and 8, the deponent said the facts deposed in paragraphs 2, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50 are facts known to the claimants while in paragraph 7, the deponent said the averments in paragraphs 3, 4, 5, 22, 23 and 34 of the affidavit in support of the OS are true. The only statement of fact contained in the counter affidavit of the 2nd and 3rd defendants is the deposition in paragraph 9 thereof and it is to the effect that appointment letter was not given to the claimants by the 1st defendant, who is authorized by law to issue, which indicates they are starting afresh and that the first enlistment date as constables have been waived.

 

WRITTEN ADDRESS OF THE 2ND AND 3RD DEFENDANTS

In the written address in support of the counter affidavit, learned counsel for the 2nd and 3rd defendants adopted the issue for determination in the written address in support of the Originating Summons. In his arguments, Counsel referred Rule 020810(1) and (2) of the Public Service Rules 2008 which stipulated the compulsory retirement age in the public service which is either 60 years of age or 35 years of pensionable service, whichever is earlier and that no officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service. Counsel argued that some of the Claimants have served out their statutory number of years with effect from the dates of their enlistment as recruits/constables into the Nigeria Police Force. It was further argued that the Nigeria Police Regulation, which was made pursuant to Section 46 of the Police Act, expressly provided the way and manner of employment, promotion, dismissal and retirement of all cadres of Police Officers. Section 107 of the Regulation prohibits any member of rank and file from withdrawing or resigning his service or voluntary retirement when he is yet to complete the period for which he re-engaged. The claimants did not state that any or all of them had completed his term of enlistment or other re-engagement as at the time the presumption of resignation took place and they did not state that on their own volition, they resigned from service, either after the first enlistment or any subsequent re-engagement when they did not receive salaries and allowances. The Claimants were public servants with the Nigeria Police under rank-and-file employment and were further appointed Cadet ASPs. Their employment date starts to count from the day they were employed under rank-and-file employment. Counsel added that the Police Service Commission is not saddled with the task of holding meetings for the purpose of extending service years.

                           

COURT DECISION

The claimants submitted two questions for determination in the Originating Summons. The questions constitute the two issues I shall examine in this judgment.

 

QUESTION 1:

What this court is called upon to determine in the first question in the Originating Summons is whether the claimants were due for retirement as at the date they were retired from the service of the Nigeria Police Force (Hereinafter referred to as NPF). The claimants were police officers who rose to the ranks of either ACP or CSP in the Nigeria Police Force (NPF) until they were individually retired from the service of the NPF between the years 2015 and 2019. While the claimants contend that their retirement dates should be calculated from the date they were appointed as cadet ASPs in May 1992, the 2nd and 3rd defendants, on the other hand, seem to assert that the claimants’ appointment commenced from when they were first appointed into the NPF as Constables. Thus, to determine this question, the actual date when the claimants were appointed into the service of the NPF is crucial as this is the bone of dispute in this suit.

 

From the facts in the affidavit in support of the Originating Summons, the claimants were initially recruited into the NPF as Police Constables on 1/3/1984, 1/2/1983, 1/4/1983, 1/5/1981 and 1/5/1980 respectively. In 1989, the defendants advertized vacancies for Cadet Assistant Superintendent of Police and Inspectors and in the 2nd defendant's signal No. CE:2710/FS/Vol. 3/205 dated 1st June, 1989 [which is same as signal CE:2710/SKS/Vol. V/136-DTO:261340/06/89], the rank and file who had University Degrees and applied for the ASP Cadet program were directed to resign their initial appointment and apply for the Cadet Program afresh like their civilian counterparts. The claimants also referred to another signal with Ref. No AH.7970/PAB/58DTO:221535/05/89 where the defendants directed successful officers who applied for the Cadet Program to resign their initial appointment or be deemed to have resigned their initial appointment. According to the claimants, these signals were subsisting up till 1992 when the Defendants also published an advertisement for Cadet ASP Program 17/92 and the Claimants, who were recruited as rank and file, applied for the program. In compliance with the directive in the signals, the claimants resigned their initial appointments and they were taken into the Police Academy on 18th May 1992 as fresh Appointment and they completed the program on 28th February 1994 as Cadet ASP (Force Entrants). According to the claimants, by the effect of the resignation of their initial appointments, their appointments as Cadet ASP Officers in 1992 was a fresh appointment and the dates of their retirement from service ought to be calculated from the date of their first appointment as Cadet ASP Officers.

 

The 1st defendant did not file a counter affidavit or any process in this suit. The implication is that the 1st defendant has not controverted any of the facts deposed to in the affidavit in support of the Originating Summons. The counter affidavit filed by the 2nd and 3rd defendants did not also controvert the facts deposed to in the affidavit in support of the Originating Summons. The effect of what was stated in paragraphs 6, 7 and 8 of the counter affidavit is that the 2nd and 3rd defendants have not challenged the facts deposed in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50 of the affidavit in support of the Originating Summons. It is trite that where facts deposed to in an affidavit on crucial and material issues are not controverted or denied in a counter affidavit, such facts must be taken as true and admitted. See A.P.C. vs. LERE [2020] 1 NWLR [Pt. 1705] 254 at 281; DANLADI vs. T.S.H.A. [2015] 2 NWLR [Pt. 1442] 103 at 119-120; ARUM vs. NWOBODO [2013] 10 NWLR [Pt. 1362] 374. Accordingly, the averments in the affidavit in support of the Originating Summons, including all the documents exhibited thereto, are taken as the true and correct facts.

 

I have seen the Signal No. CE: 2710/SKS/Vol. V/136- DTO: 261340/06/89] and Signal No. AH.7970/PAB/58DTO:221535/05/89 relied upon by the claimants. They are the documents marked Exhibits 6 and 7 of the Originating Summons. The content of Exhibit 6 is as follows:

“CE: 2710/SKS/VOL.V/136 X CADET INSPECT01UTE/ASPs X FOLLOWING MESSGE RECEIVED FROM NIGPOL FORSEC LAGOS IS HEREBY RELAYED X BEGINS X CE. 2710/FS/VOL.3/205 DTO:011345/6/89 X CADET ASP/INSPECTORATE DIRECT ENTRANCE X GRATEFUL INFORM ALL SER VING MEMBERS OF RANK AND FILE AND INSPECTORATE CADRE X THAT FORTWITH ALL SERVING MEMBERS WHO QUALIFIED FOR APPOINTMENT AS CADET ASPS OR INSPECTORS ON THE BASIS OF ACQUISITION OF HIGHER QUALIFICATION WILL NOW BE INTERVIEWED ALONG WITH THEIR CIVILIAN COUNTERPARTS X WHERE FOUND SUITABLE AND OFFERED APPOINTMENT X SUCH SERVING MEMBER WOULD THEN RESIGN THEIR APPOINTMENTS AS MEMBERS OF THE RANK AND FILE OR INSPECTORS AND JOIN FRESH CADETS X POLICY IS WITHOUT PREJUDICE TO PENSION PURPOSES IF AND ONLY IF MERGER OF SERVICE IS APPROVED FOR SUCH PURPOSE X ENDS XX ABOVE FOR YOUR INFORMATION PLEASE XXX”.

 

The above content of the signal is not difficult to understand. It is to the effect that members of the rank and file who are qualified by virtue of acquisition of higher qualifications may apply to be appointed ASP or Inspectors and upon being offered appointment, such officers are expected to resign their initial rank and file or Inspectorate cadre appointments to take up the appointment as ASP.  There is also Exhibit 7 which reads thus:

“AH 7970/PB/58 X PAYMENT OF LODGING ALLOWANCE TO FORCE ENTRANT CADET COURSEMEN X REF SIG AH. 7970/PB/52/DTO.211520/02/89 FROM NIGPOL ADMIN BUDGET IN ANSWER TO SIG NO CH. 7970/P/ACCT/89 OF 021350/02/89 FROM ACCOUNT POL KADUNA X THE FORCE POLICY SHOULD BE MADE ABUNDANTLY CLEAR TO POLICEMEN WHO ACQUIRE HIGHER QUALIFICATIONS WHILST SERVING THAT SHOULD THEY WISH TO BE CONSIDERED FOR CADET SPOL OR INSPECTOR'S SCHEME X THEY SHOULD BE ADVISED TO RESIGN FROM THE FORCE AND SEEK ENLISTMENT INTO ENHANCED POSITION IN THE FORCE X WHERE THEY DO NOT RESIGN AND ARE APPOINTED INTO THE CADET SCHEME THEY WILL BE DEEMED TO HAVE RESIGNED THEIR EARLIER APPOINTMENT AND THEY CANNOT CLAIM ANY RIGHT OR PRIVILEGE OVER AND ABOVE THEIR CIVILLIAN COUNTER-PART WHO JOIN THE FORCE WITH THEM X THAT BEING SO FORCE X ENTRANT CADET OFFICERS ARE NOT ENTITLED TO LODGING ALLOWANCE AND THOSE WHO ARE IN RECEIPT OF THESE ALLOWANCES DO SO IN ERROR ON ACCOUNT OF THE SIGNAL EARLIER QUOTED WHICH IS BEING WITHDRAWN X FORCE ENTRANT CADETS WHO MAY BE DISSATIFIED WITH THIS ORDER ARE FREE TO WITHDRAW FROM THE COURSE X YOU SHOULD BRING THIS DIRECTIVE TO THE NOTICE OF CADET SUPOLS AND INSPECTORS X ACCOUNT POL KADUNA ONLY X YOU SHOULD RECOVER ALL PAYMENTS ON THIS SUBJECT ALREADY MADE TO THE CADETS AND CONFIRM THIS HAS BEEN DONE X DIGPOLS AND AIGPOLS ARE ENJOINED TO BRING THIS TO THE NOTICE OF ALL MEN XX XX”.

 

I have underlined the portion of this signal which relates to the issue at hand. The signal disclosed that it is a policy in the NPF that policemen who acquire higher qualifications whilst serving but wished to be considered for appointment as cadet ASP or Inspector should first resign from the Force and apply for enlistment into cadet position in the NPF. However, where such officers do not resign but are appointed into the cadet scheme, they will be deemed to have resigned their earlier appointment.

 

In paragraphs 14 and 15 of the affidavit in support of the Originating Summons, the 1st claimant averred that the directive in Exhibits 6 and 7 became the regular practice that whenever the defendants advertised for Cadet Programs, including the advertisement of 1992 in which the claimants participated, officers in the rank and file who were successfully appointed into the Cadet Program will either resign their earlier appointment or were deemed to have resigned their earlier appointment. Besides the fact that the defendants did not controvert these facts, Exhibit 7 confirms that the requirement to resign from the appointment as rank and file or be deemed to have resigned from such appointment upon appointment into the cadet program is a policy in the NPF.  Therefore, it is not in dispute that in 1992 when the claimants applied for appointment as Cadet ASPs, they were expected to resign from their earlier appointments as Constables and if they did not resign but were successfully appointed as Cadet ASP, they are deemed to have automatically resigned from their earlier appointment.

 

Learned Counsel for the 2nd and 3rd defendants argued that the claimants did not show that they resigned from service, either after the first enlistment or any subsequent re-engagement. What counsel appears to be canvassing is that the claimants did not produce evidence of their resignation from their initial appointment as Constables before their appointment as Cadet ASPs. The averment of the 1st claimant in paragraphs 15, 18 and 19 of the affidavit in support of the Originating Summons that the claimants resigned from their appointment as Constables was not controverted by the defendants. It implies that the defendants admit that the claimants resigned from their initial appointment as Constables to take up appointment as Cadet ASPs. Again, assuming the claimants did not resign from their appointment as Constables, the implication of Exhibit 7 is that, upon taking up the appointment as Cadet ASPs, the claimants are deemed to have resigned from their appointment as Constables. Therefore, whether the claimants produce any evidence of resignation or not, their resignation from their initial appointment is presumed.

 

The claimants also referred to the decision of the 1st defendant in its plenary meeting held on the 27th and 28th September 2017 to the effect that all officers who were directed to resign their appointments as Non-Commissioned Officers before taking up fresh appointments into the Cadet program are to maintain the date of their appointments as Cadet officer as the date of their appointments. The 1st claimant also averred that the 1st Defendant conveyed the decision to the 2nd defendant in letters dated 25th October 2017 and 22nd June 2020. The minutes of the 1st defendant’s plenary meeting held on the 27th and 28th September 2017 and the letters dated 25th October 2017 and 22nd June 2020 are those marked Exhibits 11, 12 and 13 respectively of the affidavit in support of the Originating Summons.

 

I have seen the resolution of the 1st defendant in Exhibit 11 where it was resolved as follows:

“That in line with previous decisions taken on similar matters, the Officer's data of first appointment should remain as 15th August 1996. In addition, the IGP is requested to ensure that all Officers with similar situation covered by the same signal in courses 18 and 19 of the Police Academy, and who have been invited to change their dates of first appointments or whom the Force intends to ask to do so, should maintain the date of their appointment as Cadet ASP's as the date of their first appointment”.

 

I have also read the contents of Exhibits 12 and 13. Both letters were addressed to the 2nd defendant by the 1st defendant. Exhibit 12 reads:

 

“RE: DECISION OF THE COMMISSION'S 24TH PLENARY MEETING:

REGULARIZATION OF DATES OF APPOINTMENT

The Commission at its 24th Plenary Meeting held on 27th and 28th September, 2017 considered petitions/complaints forwarded to it by aggrieved Police Officers of Courses 18 and 19 of the Police Academy owing to the controversy surrounding their date of first appointment and decided that in line with previous decisions' taken on similar matters all Officers with similar situation covered by signal NO: CE:2710/FS/VOL.3/205 dated 1st June 1989, who were directed to resign their appointment as NCOs before taking up fresh appointment as Cadets ASPs, are to maintain the date of appointment as Cadet ASPs as the date of their first appointment.

           

You are requested to implement the decision, convey to the Officers and inform the Commission accordingly”.

 

Exhibit 13 reads thus:

 

RE: DECISION OF THE COMMISSION'S 24TH PLENARY MEETING (REGULARIZATION OF DATE OF FIRST APPOINTMENT)

       The Commission wishes to refer you to the letter PSC/1524/111/275 dated 25th October, 2017 on the above subject (letter hereby attached).

 

2.         This is to reiterate that the Commission at its 24th Plenary meeting held on 27th and 28th September, 2017 considered Petitions/Complaints forwarded to it by aggrieved Police officers of course 18 and 19 of Police Academy owing to the controversy surrounding their date of first appointment and decided that in line with previous decisions taken on similar matters, all officers with similar situation covered by signal No. CE:2710/PS/Vol.3/205 dated 1st June, 1989, who were directed to resign their appointment as NCO's before taking up fresh appointment as cadet ASP's are to maintain the date of their appointment as cadet ASP's as the date of their first appointment.

 

It is necessary to also point out that the defendants did not dispute the existence or the contents of these documents. The decision in Exhibit 11 was taken by the 1st defendant who also wrote the letters in Exhibits 12 and 13. The claimants have described the 1st defendant in paragraph 4 of the affidavit in support of the Originating Summons as the statutory body created by the Police Service Commission (Establishment) Act and saddled with the powers to appoint, promote, dismiss, discipline and formulate guidelines in respect of all Police officers. As rightly stated by the claimants, the 1st defendant is established by the CFRN 1999 [as amended] and the Police Service Commission (Establishment) Act 2001. See sections 153[1]m) CFRN 1999 and section 1[1] PSC(E) Act.  The 1st defendant is given the powers to appoint officers of the NPF, except the IGP. See Paragraph 30(a), Item M, Part I of the Third Schedule to the CFRN 1999 and Section 6(1)a) of the PSC(E) Act. This power of appointment includes the power to determine the effective date of a person appointed into the NPF. Thus, the decision and directive in Exhibits 11, 12 and 13 fall within the powers of the 1st defendant.

 

The decision of the 1st defendant in Exhibits 11, 12 and 13 is that, in line with previous decisions taken on similar matters, all officers with similar situation covered by Signal No. CE:2710/FS/VOL.3/205 who were directed to resign their appointment before taking up fresh appointment as Cadets ASPs are to maintain the date of appointment as Cadet ASPs as the date of their first appointment. The Signal No. CE:2710/FS/VOL.3/205 which the 1st defendant referred to in the letters is the same signal referred to in Exhibit 6 under which the claimants participated in the Cadet program of 1992. It therefore means that the decision of the 1st defendant in Exhibits 11, 12 and 13 was based on the existing policy in the NPF that any rank-and-file officer [non-commissioned officer] who took part in the Cadet ASP program must resign from the earlier appointment or deemed to have resigned from the earlier appointment upon appointment as Cadet ASP. The claimants are accordingly among the officers affected by the decision of the 1st defendant in Exhibits 11, 12, and 13.

 

In paragraphs 15, 18 and 19 of the affidavit in support of the Originating Summons, the 1st claimant stated that the claimants resigned their earlier appointment as Constables to take up the appointment as Cadet ASP Officers in May 1992. In view of the averment of the claimants and the content of Exhibits 6 and 7, when the claimant applied and were appointed as Cadet ASPs, they resigned from their initial appointment as Constables. Accordingly, the claimants’ appointment as cadet ASPs in May 1992 was a fresh or new appointment.

 

It was contended in paragraph 9 of the counter affidavit of the 2nd and 3rd defendants that no letter of appointment was given to the claimants by the 1st defendant to indicate that the claimant’s appointment was a fresh appointment. The 2nd and 3rd defendants did not however deny the fact that the claimants were appointed as fresh Cadet ASPs in May 1992. Again, whether or not such fresh appointment as Cadet ASP is a new appointment altogether and not a continuation of the earlier appointment, Exhibits 6 and 7 have resolved that issue. The implication of the signals is that appointment as Cadet ASP, upon resigning from earlier appointment, makes it a fresh appointment. A letter of appointment is therefore not necessary to indicate the fact. Without further ado, it is my view and I so hold that when the claimants were appointed as Cadet ASPs in 1992, it was a new appointment and the date they should be considered for retirement on grounds of years of service started counting from the date of that appointment.

 

By Rule 020810 of the Public Service Rules, compulsory retirement age for all grades in the Public Service is either 60 years of age or 35 years of pensionable service, depending of whichever comes first. Now, going by the years of service of the claimants, calculating from May 1992 when the claimants were appointed Cadet ASPs, their 35 years of service will lapse in 2027. I have seen the respective retirement letters of the claimants. They are the documents collectively marked Exhibit 14. The claimants were retired by the 1st defendant with effect from 1/3/2019, 1/2/2019, 1/4/2018, 1/5/2016 and 1/5/2015 respectively on ground of having served for 35 years. The defendants calculated the years of service of the claimants from the date they were first enlisted as Constables in the NPF and this was what was used to retire the claimants on the belief that the claimants had spent 35 years in service.

 

It is however clear that as at the date of the claimants’ retirements in Exhibit 14, they had not served for 35 years. From my findings in this case, the computation of the 35 years of service of the claimants ought to be from when they were appointed as Cadet ASPs in May 1992. Again, from the facts deposed to in paragraph 29 of the affidavit in support of the Originating Summons, I have seen that the claimants’ retirement ought not to be by years of service but by attainment of age of retirement because they will reach 60 years of age earlier than 35 years of service. It was averred that the claimants expected date of retirement based on attainment of age are 24/12/2024, 25/2/2024, 21/9/2023, 25/8/2022 and 29/5/2020 respectively. That is to say as at the date of the claimants’ retirements in Exhibit 14, they had also not attained 60 years of age. Using age of retirement, the claimants ought to retire from service on 24/12/2024, 25/2/2024, 21/9/2023, 25/8/2022 and 29/5/2020 respectively when they attain 60 years of age and going by years of service, in view of their fresh appointment as Cadet ASPs in 1992, the claimants’ retirement from service is not until 2027. Since the claimants will attain 60 years of age earlier than the years of service, their retirement ought to happen when they attain 60 years of age on 24/12/2024, 25/2/2024, 21/9/2023, 25/8/2022 and 29/5/2020 respectively.

 

It is observed that the retirement letters of the claimants were written by the 1st defendant. That is to say it was the 1st defendant who retired the claimants before their actual dates of retirements. The decision of the 1st defendant in Exhibit 11 was taken on 28th September 2017 and communicated to the 2nd defendant on 25th October 2017 vide Exhibit 12. The retirement letters of the 1st, 2nd and 3rd claimants were written on 20/2/2019, 10/6/2019 and 22/3/2018 respectively. It means that the 1st defendant had made the decision in Exhibit 11 and had communicated same to the 2nd defendant to comply with before it retired the 1st, 2nd and 3rd claimants. The 1st defendant retired the 1st, 2nd and 3rd claimants in contravention of its own decision.  The 1st defendant must be consistent in its decisions. It cannot approbate and reprobate on the same issue. See CONOIL vs. SOLOMON [2017] 3 NWLR [Pt. 1551] 50; UGWUEGEDE vs. ASADU [2018] 10 NWLR [Pt. 1628] 460. The 1st defendant is therefore bound by its decision and resolution contained in Exhibits 11, 12 and 13. 

 

In its decision in the plenary meeting and the instruction to the 2nd defendant in Exhibits 12 and 13, the 1st defendant clearly settled the controversy on the issue of the date of first appointment of the officers who were directed to resign their rank-and-file appointment before taking up fresh appointment as cadet ASP's. The date of first appointment of such officers is the date of appointment as cadet ASP. Since the claimants are covered by signal No. CE:2710/PS/Vol.3/205 dated 1st June, 1989, this decision of the 1st defendant applied to the claimants. In view of the foregoing, question 1 of the Originating Summons is resolved to the effect that the date of the claimant’s first appointment into the NPF was the date of their appointment as Cadet ASPs, which was on 18th May 1992. The defendants cannot therefore retire the claimants based on the date of the claimants’ earlier enlistment into the NPF as Constables. Question 1 is accordingly resolved in favour of the claimants.

 

QUESTION 2:

The Public Service Rules (hereinafter referred to as ‘PSR’) was made pursuant to powers conferred by the Constitution and for that reason the PSR has been regarded as a subsidiary legislation and has the force of a statute. See F.C.S.C. vs. LAOYE (1998) 2 NWLR (Pt. 106) 652; FEDERAL UNIVERSITY OF TECHNOLOGY, YOLA vs. MAIWUYA (2013) All FWLR (Pt. 677) 753. The PSR also confers the employment to which it regulates an employment protected by statute. See UNIVERSITY OF TECHNOLOGY, YOLA vs. MAIWUYA (2013) All FWLR (Pt. 677) 753 at 762; NAWA vs. ATTORNEY-GENERAL, CROSS RIVER STATE [2008] All FWLR [Pt. 401] 807. Therefore, the provisions of the PSR must be strictly complied with in relation to the employment of officers whose employment it regulates as any act done in breach of the provisions of the PSR is ultra vires, null and void. See IMOLOAME vs. WAEC (1992) 9 NWLR (Pt. 265) 303; OLUSEYE vs. L.A.W.M.A. (2013) 17 NWLR (Pt. 849) 307. When the claimants were retired from service vide the letters marked Exhibit 14, they had not attained retirement age and had not served for 35 years. The retirement of the claimants from service was done in clear violation of Rule 020810 of the PSR. Accordingly, the retirement of the claimants before their due dates of retirement is unlawful, null and void and liable to be set aside.

 

It is trite that the consequence of a finding that an employee has been improperly removed from his employment which is protected by statute is that the employee has never been removed from the employment at all. A consequential order for the reinstatement and payment of the outstanding salaries and other entitlements of the employee from the time of the unlawful removal will necessarily follow. See OMIDIORA vs. FEDERAL CIVIL SERVICE COMMISSION (2008) All FWLR (Pt. 415) 1807; KWARA POLYTECHNIC ILORIN vs. OYEBANJI (2008) All FWLR (Pt. 447) 141. Therefore, the claimants are entitled to be reinstated to the service of the NPF and to be paid all their salaries, allowances and other benefits due to them from the time of their unlawful retirement. Question 2 of the Originating Summons is resolved in the affirmative and in favour of the claimants.

 

The claimants sought 9 claims in this suit. The claims in numbers 1 to 5 are declaratory reliefs which they have successfully established. While the claimants are also entitled to the orders sought in reliefs 7 and 8, I do not think they are still entitled to the orders they sought in reliefs 6 and 9. In relief 6, the claimants sought an order directing the Defendants to reinstate them back into the NPF and to place them on their due ranks. In relief 9, the claimants sought an order of injunction restraining the defendants from prematurely retiring the claimants before completing their respective years of service. I have said it earlier that the claimants who were unlawfully retired are entitled to be reinstated but that is no longer possible in view of the present circumstances of the claimants. In paragraph 29 of the affidavit in support of the Originating Summons, the 1st claimant averred that the claimants expected dates of retirement based on attainment of age are 24/12/2024, 25/2/2024, 21/9/2023, 25/8/2022 and 29/5/2020 respectively. As at today, being the date of judgment in this suit, except the 1st claimant who will reach age of retirement on 24/12/2024, all the other claimants have since reached their ages of retirement and the law deems that they have now retired lawfully on the due dates. This is pursuant to Rule 020810 (ii) of the Public Service Rules which provides that no officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of service. The result is that, except the 1st claimant, all other claimants are no longer entitled to be reinstated, having now passed their ages of retirement.

 

In the final result, the declarations sought by the claimants in reliefs 1, 2, 3, 4 and 5 of the Originating Summons are made accordingly. I further make the following orders:

1.      The defendants are ordered to reinstate the 1st Claimant immediately into the NPF and be placed in the rank he ought to be as at today until he lawfully retires on 24/12/2024.

2.      The defendants are ordered to pay to each of the claimants all the salaries, allowances and other benefits accruing to each of them from the respective dates of their unlawful retirement from service up to date of their lawful retirement from service upon attainment of the mandatory 60 years retirement age.

3.      The accrued salaries and allowances of each of the claimants are to be computed and paid to them based on the correct ranks they ought to be within the period of their unlawful retirement and the proper date of their retirement.

4.      The Defendants are ordered to forthwith update the service records of the Claimants to reflect 18th May 1992 as the date of their first appointment as Cadet ASP.

5.      Cost of N1,000,000.00 is awarded in favour of the Claimants.

 

Judgment is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge