Tag: ‘unlawful

This appeal is against the judgment of the Federal High Court, Abuja Judicial Division (Coram; Oloto, J.) in suit No. FHC/ABJ/CS/277/2011 delivered on December 14, 2012, dismissing the case of the Appellant against the Respondents for unlawful retirement from the service of the 2nd Respondent. The Appellant was transferred from the service of Sokoto State Government to the service of the 2nd Respondent in 1990 and he rose to the rank of Comptroller of Customs. On 21st December 2009, the Appellant, along with 31 other Comptrollers of Customs, was compulsorily retired from the service of the 2nd Respondent. Aggrieved by the turn of events the Appellant, along with another Comptroller, sued the Respondents at the Federal High Court, Abuja Division claiming as follows: a declaration that the purported retirement of the Plaintiff from the services of the 2nd Defendant is unlawful, malicious, irregular and a flagrant violation of the Plaintiff’s right of employment until the mandatory retirement age; an order of the Honourable Court setting aside the purported retirement of the plaintiff by the 1st, 2nd and 4th Defendants through a public notice as unlawful, malicious, irregular and a flagrant violation of the plaintiff’s right of employment until the mandatory retirement age; an order of the Honourable Court to the Defendants allowing the Plaintiffs to resume back to work and maintain their positions as Comptroller of Customs and to be paid all their benefits and emoluments therein and also to enjoy their lawful promotions; and an order awarding the sum of N20, 000,000 (Twenty Million Naira Only) to the Plaintiffs as general damages for the trauma, of forceful loss of job occasioned by the 1st and 2nd Defendants. The trial Court dismissed the case on account of service reform of the 2nd Respondent. Dissatisfied by the turn of events, the Appellant appealed to the Court of Appeal. In his brief of argument, Counsel for the Appellant formulated five issues for the Court’s determination of the appeal and the Respondent formulated two issues. The Court, however, determined the appeal on the issues as formulated by the Respondent. The issues are:

1. Whether the learned trial judge was right when she held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed his suit?

2. Whether the trial judge was right to hold that the respondents’ witness statements on oath need not be amended notwithstanding the amendment of the statement of defence?”

The Appellant’s Counsel arguing the appeal referred to the findings of the trial court in its judgment that the Appellant’s retirement in 2010 was premature going by his date of birth and date of retirement and submitted that the trial court misdirected itself in falling back on the policy guidelines on the Nigerian Customs Service Reform.

It was his submission that it contradicted Section 8 and Chapter 16, Section 1, paragraph 160001 and 160103 of the Nigerian Public Service Rules and Conditions of Service of Nigeria Customs Service. On the question whether the policy guidelines on the reform can be used to circumvent the supremacy of the Public Service Rules 2000 and 1999 Constitution of the Federal Republic of Nigeria and whether the trial judge was right to have arrived at the judgment delivered on December 14, 2012 on the basis of policy guideline on extended 10 years as Comptroller of Customs, counsel submitted that for public policy to be effective, it must operate within the milieu of the law.

He cited and relied on SONNAR LTD. v. NORDWIND (1987) 4 NWLR (66) 520; (1987) LPELR-3494(SC) and EDET V. CHAGOON (2008) 2 NWLR (1070) 85, 108; (2007) LPELR-8164(CA) to strengthen his submission. It was his further submission that the Appellant’s employment enjoys statutory flavour. On this, he referred to Section 8 paragraph 0200810 (1) of the Public Service Rules and Section 2 paragraph 2 of the Conditions of Service of the Nigerian Customs Service. He finally urged the court to allow the appeal and grant the reliefs of the appellant.

The Respondent’s Counsel in arguing the appeal affirmed that the learned trial judge was right when she held that the Appellant was properly retired from the service of the 2nd Respondent and accordingly dismissed his suit. He stated that the 4th Defendant is a creation of statute pursuant to Section 1 (1) of the Nigerian Customs Service Board Act, Cap N 100 Laws of the Federation of Nigeria, 2004. Referring to Sections 3 (1) (a) and 4 (2) and (b) of the Act, he submitted that the Board is vested with the power and authority to issue policy guidelines to Reform and Modernise Nigeria Customs Service.

He noted that as at 21/12/2009 when he was retired, the Appellant had served as a comptroller of customs for over 11 years. It was his further submission that court generally defer to the executive on matters within the exclusive knowledge of that arm of government, particularly on policy matters bordering on national security, environmental interest, economic and revenue issues. He, therefore, asserted that the trial court was right to decline to interfere with the Appellant’s retirement based on the policy guidelines of the 4th Respondent. He urged the court not to interfere with the findings of the trial court.

In determining the appeal, the court noted that it is a common ground between the parties that the Appellant’s service was transferred from the Sokoto State government to the service of the 2nd Respondent and that the Appellant rose to the position of Comptroller of Customs. It was also common ground that the Appellant was compulsorily retired from service sometime in December, 2009.

The Court stated that the trial court dismissed the case of the Appellant placing reliance on Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform. The guidelines were stated to have been made in line with the powers conferred on the 4th Respondent by the Nigerian Customs Service Board Act Cap. 100 and the Customs and Excise Management Act, Laws of the Federation of Nigeria, 2004. The court noted that the 4th Respondent has the power to formulate general policy guidelines for the Nigeria Customs Service. See Section 3 (a) of the Nigerian Customs Service Board Act.

The court agreed with counsel for the Respondent that the Board had power to issue Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform. The court further noted that by Chapter 2, Section 8 and paragraph 020810 (1) of the Public Service Rules, the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier and this applies to the 2nd Respondent by virtue of Chapter 16, Section 1, paragraph 160103 and Section 4, paragraph 160401 (a) of the Public Service Rules.

The Court held that a statement of policy, general or otherwise, cannot overrule or wipe away specific provision of the public service rules especially where such policies are not written into the terms of the contract of the employee, as in the instant case. The Court agreed with Appellant’s counsel that a decision of court based solely on policy, as in this instance, leads to uncertainty in the law. See SONNAR LTD. v. NORDWIND (1987) 4 NWLR (66) 520; (1987) LPELR-3494(SC) and EDET V. CHAGOON (2008) 2 NWLR (1070) 85, 108; (2007) LPELR-8164(CA).

Examining Exhibit 24- Policy Guidelines on the Nigeria Customs Service Reform the court noted that one of the grounds for recommendation for the disengagement by the Board is in respect of officers, who have served for extended periods of time on the same grade, to allow for the innovative potentials of young and hardworking officers and Exhibit 24 does not set out the exact number of years spent on the same grade to qualify an officer for recommendation for disengagement.

The court further noted that in paragraph 7 of the amended statement of defence, it was averred that about 30 Comptrollers including the Appellant, who had spent between 10 – 21 years on the same rank of Comptroller, were retired in line with the reform of the service. The court stated that the trial court found that the Appellant was promoted to the rank of comptroller with effect from 15/6/2000. The Appellant was retired on 21/12/2009. And this means that as at the date of his compulsory retirement, he still had about 6 months to clock 10 years as a Comptroller. He was thus not qualified for compulsory retirement going by the criteria used by the 2nd Respondent.

The Court held that the Appellant’s employment had statutory flavour and so he did not hold office at the pleasure of the 2nd Respondent and his premature retirement was therefore, unlawful, null and void. He is entitled to be re-instated in the service. See IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2006) 133 LRCN 217; (2005) LPELR-1420(SC) and OLORUNTOBA-OJU V. ABDULRAHEEM (2009) 13 NWLR (1157) 83; (2009) LPELR-2596(SC).

On the whole, the court held that the appeal succeeds and the judgment of the trial court in suit No. FHC/ABJ/CS/277/2011 delivered on December 14, 2012 was thereby set aside.

•Edited by LawPavillion

LawPavilion Citation: (2014) LPELR-23367(CA)