Justin Ikechukwu Amafili v Governor Of Imo State Anor
| Judge | Hon. Justice O. Y. Anuwe |
| Judgment Date | 14 July 2016 |
| Respondent | Governor Of Imo State Anor |
| Appellant | Justin Ikechukwu Amafili |
| Docket Number | NICN/OW/14/2013 |
| Counsel | C.H. Azuine (Mrs.) for the Claimant |
| Court | National Industrial Court (Nigeria) |
On 23rd day of August 2013, the claimant
filed a complaint and claimed against the Defendants jointly and severally as
follows:
1.
A Declaration that the claimant is still
a Permanent Secretary in the service of the Imo State Government and is
entitled to the salaries, emoluments, benefits and privileges till 1st
March, 2018.
2.
A Declaration that the claimant is only
due for retirement on 1st March 2018 when he would have attained 60
years of age.
3.
A Declaration that the purported
retirement of the claimant from the Imo State Civil Service by the 1st
defendant (vide letter dated 30th May, 2013 reference number
null and void and of no effect.
4.
An order setting aside the purported
retirement of the claimant from Imo State Civil Service (vide letter dated 30th
May, 2013 reference number CSC/P.9/S.9/IV/101 issued by the chairman of the 3rd
defendant.)
5.
An order reinstating the claimant as a
Permanent Secretary in the Imo State Civil Service.
6.
An order restoring the payment of
salaries, emoluments, allowances, benefits and privileges to the claimant by
the defendants from May 2013.
7.
An Injunction restraining the
defendants, their servants and or agents from retiring the claimant from the
Imo State Civil Service before 1st March, 2018.
The complaint was
filed alongside pleadings and other processes which were served on the
defendant. The defendants entered appearance vide a motion for extension of
time on 31st January 2014, and subsequently on 19th March
2014, vide a motion for extension of
time, filed a Statement of Defence, the Defendant’s witness written statement on oath, List of witness and documents. After
preliminary applications were taken and resolved; hearing commenced on 23rd
April 2015. The Claimant testified for himself as CW1. The Defendant called one
witness Samuel Chinedum Ezeji a Chief Administrative Officer in the 3rd
defendant. Hearing was concluded on 14th March, 2016, and parties
were ordered to file their final written addresses in accordance with the rules
of this court. The Claimant’s address was filed on 21st April 2016. The
defendants’ final written address was filed on the 23rd day of May
2016 vide a motion for extension of time. Parties adopted their respective
Final written addresses on 27th May, 2016.
In the claimant’s
final address filed on 21st April 2016, counsel identified one issue
for determination as follows:
Whether the claimant having not attained the age of 60 years or thirty-five
years of service can be prematurely and compulsorily retired from the Imo State
Civil Service by the defendants.
In arguing this
issue, counsel stated that the claimant is a public officer and cited ACHU vs. CSC CROSS RIVERS STATE (2009) 3
that it has been admitted by the parties that the claimant is a civil servant
in the employ of the 3rd defendant which is a creation of the
Nigerian Constitution with powers to appoint, dismiss and exercise disciplinary
control over persons holding offices in the Imo State Civil service. It is
counsel’s further argument that the claimant’s employment has statutory flavour
as his contract of service is governed by the Imo State Civil Service Rules See
1344) 417 paras B-F and NAWA vs. A. G. CROSS RIVERS STATE (2007) LPELR 8294
(CA).
It is the
submission of Counsel that by virtue of section 31 of the Imo State Civil
Service Commission Regulations 1984, the claimant is due for retirement upon
attaining the age of 60 or 35 years in service. Counsel submitted further that
while DW1 admitted that the 1st defendant had the power to hire and
fire the claimant; he failed to state the law providing for such power. Again,
counsel is of the opinion that since the claimant’s employment is statutory,
the defendants cannot determine it without recourse to the statutory
regulations governing his employment, non-observance to any of such rules as in
the present case renders such purported retirement a nullity. See the following
cases of: AKINYANJU vs. UNILORIN (2011)
All FWLR (Pt. 569) 1080 at 1147-48 and LONGE vs. FBN (2010) 6 NWLR (Pt 1189) 1.
It is counsel’s
argument at this juncture that the 1st defendant lacks the power to
remove the claimant from office without following due process, stated in the
Civil Service Rules. See NAWA vs. A.G.
to retire him from service. Counsel contended that though the said letter
emanated from the 3rd defendant; it conveyed the decision of the 1st
defendant. Therefore, it was the 1st defendant that unlawfully
purportedly retired the claimant without the 3rd defendant’s input
contrary to section 202 of the 1999 Constitution that provides for the
independence of the 3rd defendant from any authority including the 1st
defendant. see CSC IMO STATE vs. GODWIN
12/12/2006. Similarly, counsel argued that when a legislation has specified
functions or duties for a specific body to carry out, it is only that body that
can discharge such duties to the exclusion of other bodies not contemplated or
mentioned in the statute. Anything to the contrary, would be illegal. See LADEJOBI vs. ODUTOLA HOLDING LTD (2002)
Also, this letter
did not disclose the cause for retiring the claimant. The defendant at trial
failed to establish just cause for the purported retirement. Counsel cited the
case of OLUFEAGBA vs. ABDULRAHEEM (2009)
18 NWLR (Pt. 1173) 462-64 where it was held that in a statutory employment,
the reason for termination is crucial to both parties’ case. The reason must be
ascertainable and in accordance with the letter of appointment, governing
regulations and statutory provisions. Drawing from the foregoing, counsel
submitted that the purported retirement is unlawful and unconstitutional
because no evidence was given to show compliance with the Civil Service Rules. The
1st defendant is not permitted to act contrary to law, the claimant
having been appointed by the 3rd defendant does not hold his tenure
of office at the pleasure of the 1st defendant.
Furthermore,
counsel submitted that the claimant was retired prematurely. According to the
Oxford Advanced Learners Dictionary 7th Edition, the word premature
means “happening before the normal or expected time”. It is counsel’s
submission that the claimant was born on 1/3/1958 and was employed on 1/9/1984
by the 3rd defendant. The claimant was 55 years old and had worked
for 29 years at the time he was purportedly retired by the defendants which is
clearly below the statutory requirement, thus null and void. See PHCN vs. OFFOELO (supra) at 409.
Counsel urged the court to hold that the claimant was prematurely retired from
office and reinstate him back to his position with its attendant rights,
benefits and privileges and in line with the decisions in OLANIYAN vs. UNILAG (1985) 2 NWLR (Pt. 9) 599 and KWARA POLY vs. OYEBANJI (2008) All FWLR (Pt.
447) 141 at 199. In conclusion, counsel prayed the court to grant the
reliefs sought by the claimant.
In the defendants’
final address, filed on 23/5/2016 vide a motion for extension of time, counsel
raised one issue for determination thus:
Whether the claimant is rightly retired and entitled to the reliefs sought.
Counsel argued that
the claimant was appointed Permanent Secretary by the 1st defendant,
retired by the 1st defendant through the 3rd defendant
and is not entitled to any of his claims. Counsel argued further that the 1st
defendant has the discretion to appoint and remove any person holding any office
under Section 208 of the Constitution. The removal of such person is an
executive act which is not actionable in court. The office is not one which the
civil service commission can elevate a person to by promotion. Counsel
submitted that section 208(4) makes the position of Permanent Secretary a
political office which appointment is not based on merit. The office of
permanent secretary is not regulated by the Civil Service Rules. Also, Section
11(B) of the Interpretation Act vests power in the Governor to appoint or
remove the claimant being a person appointed under section 208. Counsel
contended that the powers vested in the Governor...
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