Retirement: Industrial Court Orders Immediate Reinstatement of SAMBO YAHAYA NAWAWI As Sokoto State Auditor General

• 2192 Wednesday 30th May 2018

 

 

Sokoto----His Lordship, Hon. Justice K. D. Damulak of the National Industrial Court of Nigeria, Sokoto Judicial Division on Wednesday 30th May 2018 in a landmark Judgment declared that SAMBO YAHAYA NAWAWI retirement as the Auditor-General of Sokoto State before his retirement age which is 60 years is unconstitutional, wrongful, illegal, null and void and of no effect whatsoever and ordered for his immediate reinstatement to his office as Auditor-General of Sokoto State and also payment of all his salaries, allowances and other entitlements from the date of his unlawful retirement until the date of this judgment by the Sokoto State Government.

 

The claimant prayed from the defendant among others;  A Declaration that the Claimant’s removal from the office of the Auditor-General of Sokoto State before his retirement age which is 60 years and/or without following due process of law is unconstitutional, wrongful, illegal, null and void and of no effect whatsoever and AN ORDER REINSTATING the Claimant to his office and for the payment of all his salaries, allowances and other entitlements from the date of his purported unlawful removal until the date of his retirement;

 

The claimant was a civil servant in the civil service of Sokoto State from 1981 and was appointed Auditor –General of the state on 4/2/2013. By a notice of retirement dated 18^th August, 2016, the claimant was retired from service on the basis of having served in the Public Service of Sokoto State for 35 years. The claimant contends that by reason of Section 127(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended, and Section 4 of the Sokoto State Audit Law 1996, he cannot be retired after 35 years of service but only after 60 years of age.

 

The defendant on the other side contends that the claimant is subject to retirement after 35 years of service in line with the Public Service Rules of Sokoto State 2001 and the Contributory Pension Scheme Law of Sokoto State 2007.

 

Under cross examination, CW2 testified that he is the elder brother of the claimant and that their age difference is 12 years. That he was the former Auditor –General of Sokoto state and it is not an elective office. That the office is also part of the Civil Service of Sokoto State. The Civil Service Commission in Sokoto State promotes and appoints. The process for the appointment of Auditor- General is as provided for in the constitution.

 

Testifying as the sole witness for the respondents as DW1, Bande Mohammed Rikina, the Permanent Secretary, Ministry of Commerce, Sokoto State and former director office of the Sokoto State Head of Civil Service That the prescribed retirement age of the Auditor-General of Sokoto State mentioned in Section 127 of the Constitution has been defined in Sokoto State Pension Law 2007 and Sokoto State Public Service Rules 2001.That the claimant was not removed from office but was duly retired from office after attaining the statutorily prescribed age of retirement which is 60 years of age or 35 years of service whichever is earlier.

 

That the retirement age of the Auditor – General in accordance with the Sokoto State Contributory Pension Scheme Law, 2007, official Gazzette No.3 of 2007 is 60 years of age or 35 years of service whichever comes first. That the respondents acted within the confines of the law in retiring the claimant after attaining the mandatory  retirement age of 35 years of service first.

 

After reviewing the argument of the parties, the Court Presided by Hon. Justice K. D. Damulak expressed thus;

 

“It is my view that this literal meaning of ‘retirement age’ does not cause any absurdity in interpreting Section 127(2) or any other Section of the 1999 Constitution but it is rather supported by the meaning accorded to the same words in Sections 291 and 292 of the same Constitution. I find no reason to embark on a voyage of discovery or to import into section 127(2) of the Constitution what is not there.

 

The power to modify or amend a law yet to have effect lies squarely with the state House of Assembly and for the Governor to purport to do so will amount to an unconstitutional usurpation of the legislative powers of the House of Assembly.

 

For this reason, I find the Modification of the revised edition of the Audit Law of Sokoto State 1996 by the Governor of Sokoto State on 31/8/1999 before the law came into force on 24^th January,2000 to be invalid, same being ultra vires the power of the Governor, null , void and of no effect. I so declare.

 

Accordingly, any law pursuant to Section 127(2) of the Constitution which provides for ‘years of service’ as a criteria for retirement in is inconsistent with that Section and by Section 1(3) of the same Constitution, null and void to that extent of inconsistency.  The Modification Law of 1999, in addition to providing for 60 years as a criteria for retirement, also provides for 35 years of service as a criteria for retirement, the 35 years of service as a criteria for retirement is inconsistent with the provision of Section 217(2) of the Constitution and is hereby declared null and void.

 

The modification of the Audit Law by the Modification Law of Sokoto State 1999 is hereby declared invalid for inconsistency with Sections 135 and 127(2) of the Constitution.

 

For the avoidance of doubt, the Court hereby makes the following declarations and orders as follows;

1. A DECLARATION that the retirement date of the Claimant from the office of the Auditor-General of Sokoto State is the date of his attainment of the retirement age of sixty (60) years which is the 18^th day of October, 2024.
2. A DECLARATION that the Claimant’s retirement as the Auditor-General of Sokoto State before his retirement age which is 60 years is unconstitutional, wrongful, illegal, null and void and of no effect whatsoever.
3. AN ORDER setting aside the Letter for Notification of Retirement dated 18^th August 2016 served on the Claimant as null and void and of no effect.
4. An ORDER REINSTATING the Claimant forthwith to his office as Auditor-General of Sokoto State.
5. AN ORDER for the payment to the claimant of all his salaries, allowances and other entitlements from the date of his unlawful retirement until the date of this judgment.

Judgment is read and entered accordingly.

 

For Full Judgment, Click Here

 

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