IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE

DATE: JANUARY 13, 2025                                        SUIT NO: NICN/ABJ/274/2023

BETWEEN:

MOSES AMBAKINA JITOBOH                                                              CLAIMANT

AND

POLICE SERVICE COMMISSION                                                         DEFENDANT

 

REPRESENTATION:

Joseph Onu Silas for the Claimant.

Prof. Edoba Omoregie SAN for the Defendant, with Babatunde Dada, J. D. Awolola, O. N. Ibiam, J. H. Abdulkadir, Aisha Hassan Abdulkadir, Happiness Jelili Dele.

 

                                                   JUDGMENT

Introduction and Claims

[1] The Claimant filed this Complaint against the Defendant on October 10, 2023 together with the accompanying processes seeking the following reliefs:

a)      A Declaration that the purported compulsory retirement and or termination of the Claimant's appointment as Deputy Inspector-General of Police by the Defendant before his mandatory 60 years retirement age or 35 years in service by a letter dated 25^th August, 2023 is wrongful, unconstitutional, unlawful and a flagrant violation of Rule 020810 of the Public Service Rules and Section 18 (8) of the Nigeria Police Act, 2020, respectively.

 

b)     A Declaration that the Claimant was and remains an officer of the Nigeria Police Force until the 10^th day of June, 2029 when he would have attained 35 years in service and duly retire and is therefore entitled to his salaries, emoluments and all other paraphernalia of office due to him.

 

c)      A Declaration that pursuant to Section 4 (3) of the Police Service Commission Act, 2001 the Defendant had no valid Board to take any decision whatsoever purporting to retire or promote any Police Officer.

 

d)     An Order of this Honorable Court setting aside the purported compulsory retirement of the Claimant as Deputy Inspector-General of Police  on the 25^th day of August, 2023 by the Defendant.

 

e)      An Order setting aside all the unlawful and embarrassing decisions taken by the Defendant, including the retirement of the Claimant and the promotion of another to replace the Claimant, same having been done unlawfully and illegally.

 

f)      An Order directing the Defendant to pay the Claimant the sum of N500, 000,000.00 (Five Hundred Million Naira) only as general damages for the unwarranted embarrassment caused by the purported termination of his employment.

 

g)     The   sum of N50, 000, 000.00 (Fifty Million Naira) only as the cost of prosecuting this action.

 

[2] The Defendant filed it statement of defence and the accompanying processes on February 16, 2024. The Claimant filed a reply on February 28, 2024.

Case of the Claimant

[3] The Claimant’s case on the pleadings is that he is a Deputy Inspector General of Police, Nigeria Police Force; and he was born on 1^st June, 1970. The Claimant averred that he obtained a B.Sc Hons Degree in Gegraphy/Regional Planning in 1992 from the University of Calabar; and he was enlisted into the Nigeria Police Force as Cadet Assistant Superintendent of Police Course 4/94 by offer of appointment dated 10^th June, 1994. The Claimant averred that while in active service in the Defendant's employment and without any wrong doing or query, his attention was drawn to some publications on social media on 28^th of August, 2023 that he was listed among senior Police Officers of the rank of Deputy Inspector-General of Police compulsorily retired by the Defendant.  The Claimant stated that the social media report was confirmed by a formal letter addressed to him, which was backdated to August 25^th 2023.

 

[4] The Claimant averred that being a Public Servant whose appointment is governed by the provisions of the Public Service Rules and the Nigerian Police Act, 2020 and in the absence of any established wrong doing leading to dismissal from service or voluntary retirement, it was unlawful to be compulsorily retired by the Defendant from  service  before attaining the statutory age  of sixty (60) years or thirty-five (35) years  of service whichever is  earlier as  provided under Rule 020810 of  the Public Service Rules and  Section 18 (8) the Nigeria Police Act, 2020. The Claimant stated that he still had up to 10^th June, 2029 to attain the statutory 35 years in service for retirement from the service of the Nigeria Police Force. The Claimant stated that at the time of the purported compulsory retirement, he was and is still willing to serve in the Nigeria Police Force. That the only reason advanced in the media publication and the letter of notification for his compulsory retirement by the Defendant through its Chairman Mr. Solomon Arase, is that his purported junior, Mr. Egbetokun Olukayode Adeolu, was appointed as the Inspector-General of Police.

 

[5] The Claimant averred that in the history of the Nigeria Police Force, evidence abounds that where a junior officer is appointed to a higher rank, his senior (s) before such a promotion are not compulsorily retired but are allowed to serve in different capacities until their statutory retirement age is attained or upon attaining of thirty-five (35) years in service, whichever comes first. He stated the promotions, appointments and postings of the following senior officers: Mr. Ogbonnaya O. Onovo; Mr Tafa Balogun; Mr. Sunday Ehindero; Mr. Mike Okiro; Mr. Hafiz Ringim; Messrs. I. V. Okoronkwo; Azubuko Udah; Dawodu Ganiyu A; Mr. M.D. Abubakar; Mr. Suleiman Abba; Mr. Danazumi Job Doma; Mr. Solomon Arase; Mamman Ibrahim Tsafe; Mr. Saliu Arugungu Hashimu; Mr. I.T Mamman. The Claimant further averred that no senior officers to the   Inspector-General of Police was compulsorily retired, and further that none of the senior officers to the former Inspector-General of Police Solomon Arase was compulsorily retired.

 

[6] The Claimant averred that the reason for his compulsory retirement as stated by the Defendant in its letter dated 25^th August, 2023 signed by Mr. Solomon Arase, who himself served under his junior as DIG, was that his junior Mr. Egbetokun Olukayode Adeolu was appointed as the Inspector-General of Police is inexplicable. That it has never been the policy of Nigeria Police Force to retire officers ahead of their due retirement dates because a junior officer was promoted above such an officer (s), if that were to be the policy, the current Acting-Inspector-General of Police, being senior to the Claimant by enlistment into the Police Force, would have been retired a long time ago when the Claimant was promoted ahead of him. The Claimant averred that through his Solicitors letter of complaint, he served the Defendant with a pre-action notice.

 

[7] The Claimant stated that he knows that the Police Service Commission cannot function or take decisions relating to its mandate unless it has a validly constituted board with the lawfully prescribed quorum at any meeting where it intends to exercise its powers as provided under Section 2 (4) of the Police Service Commission Act, 2001. He further stated that the Police Service Commission Board enjoys a joint tenure as members or the Chairman cannot be appointed to enjoy separate term from others under Section 4 (3) of the Police Service Commission Act, 2001. The Claimant averred that as at 25^th August, 2023 the Police Service Commission Board was not in existence as the last appointed Board had already served out its tenure on 24^th July, 2023. That Mr. Solomon Arase, Chairman of the Police Service Commission was and could only be appointed to complete the tenure of Mr. Misliu Smith as required by the establishment Act, after Mr. Smith resigned as the Chairman of the Commission on 15^th September, 2022. The Claimant further stated that under the Police Service Commission Act, 2001 Mr. Solomon Arase was not competent to take a board decision alone; and that the decision was designed and deliberately carried out to cause him serious professional career embarrassment.

 

[8] The Claimant testified in support of his case. He adopted his statement on oath which was in the exact terms of the pleadings. In cross-examination, he confirmed to the Court that the Defendant is the supervisory body of the Police and that he is familiar with the mandate of the Defendant. He confirmed that the Defendant has an oversight of the Nigeria Police Force that includes appointment, discipline and promotion. The Claimant told the Court that he joined the Police Force on 10^th June 1994 as a graduate; and that in 1992-1993 he did his NYSC in Makurdi and presented his certificate to the Nigeria Police. The Claimant told the Court that he was only given a letter of retirement after it was announced on the media. He stated that the normal channel of communication is through the Force Secretary, and that he received the letter through the Force Secretary. He told the Court that the step he took after receiving the letter was to challenge it in the Court.

 

Case of the Defendant

 

[9] The case of the Defendant on the pleadings is that it is vested with both constitutional and statutory mandates to undertake external oversight of the Nigeria Police Force (NPF) including the mandate to appoint, promote, dismiss and exercise disciplinary control over persons holding positions in the NPF other than the Inspector General of Police. The Defendant averred that the Claimant was lawfully retired from the Nigeria Police Force pursuant to the decision reached at a meeting of the Defendant’s Management Committee held on 7^th July, 2023 which was subsequently communicated to the Claimant on 25^th August, 2023. The Defendant averred that the compulsory retirement of the Defendant is within constitutional and statutory powers and functions and therefore not in violation of any rule or law including the Public Service Rules and the Nigeria Police Act. 2020.

[10] The Defendant stated that the Claimant’s service in the Nigeria Police Force is governed by the Constitution of the Federal Republic of Nigeria, the Police Service Commission (Establishment) Act, 2001, the Nigeria Police Act 2020, and the Public Service Rules. It stated that the decision to compulsorily retire the Claimant was not communicated to him on the social media but by formal letter of compulsory retirement dated 25^th August, 2023 delivered in the normal channel of official communication between the Defendant and officers of the Nigeria Police Force of the rank then occupied by the Claimant; which is through the office of the Inspector General of the Police. The Defendant averred that in exercising its disciplinary control over the Nigeria Police Force, the Defendant is neither compelled by law or policy to adhere to previous episodes nor barred from taking decisions on a case by case basis as was done in the decision to compulsory retire the Claimant. The Defendant further averred that its Chairman was lawfully appointed into office and exercises his powers as Chairman lawfully.

[11] The Defendant stated that the Claimant did not issue a pre-action notice within the meaning and letters of the Police Service Commission (Establishment) Act and that this suit is incompetent.

[12] The Defendant’s witness is Obinna Vincent Malokwu (DW) Assistant Director. He adopted his statement on oath which was in the exact terms of the pleadings. Under cross-examination DW admitted that the word “retire” is not included in paragraph 1 of the statement of defence. He told the Court that the Claimant was retired from the Nigeria Police Force.

Final Address

[13] The Defendant’s final address is dated September 17, 2024 and filed on September 19, 2024. The Claimant’s final address is dated September 26, 2024 and filed on the same day. The Defendant’s reply on point of law is dated October 15, 2024 and filed on October 16, 2024.

[14] The Defendant submitted four issues for determination as follows:

1.      Whether by the non-compliance with the provision of Sections 20 (3) and (4), and 21 of the PSC Act, this suit is liable to be dismissed for want of jurisdiction.

                                  

2.      Whether the Defendant duly acted within its Constitutional, and statutory power in the PSC Act when it retired the Claimant.

 

3.      Whether by failing to tender documentary evidence of service under the National Youth Service Corps Act Cap N84 LFN 2004, the Claimant’s claim to being validly employed in the NPF is unsustainable and fatal to the entire Suit.

 

4.      Whether the Claimant is entitled to the reliefs sought in his Statement of Material Facts.

[15] Learned Counsel submitted that the Claimant failed to comply with the mandatory statutory requirement in on Section 20 (3) and (4) of the PSC Act to issue the appropriate pre-action Notice on the Defendant. That it is trite that for a Court to exercise jurisdiction over a matter, the matter must have been initiated by due process of law and all conditions precedent for the exercise of the Court’s jurisdiction must have been met, relying on Madukolu v. Nkemdilim [1962] 2 NLR p.581. He submitted that the clear effect of Section 20 (3) and (4), read together with Section 21 of the PSC Act is that service of pre-action notice on the Defendant is a condition precedent to the institution of any action against the Defendant, whether by itself or through its officers as expressly mentioned in the provisions. He further submitted that the provisions of Sections 20 (3) and 21 of the PSC Act presupposes that the Secretary of the Defendant is the alter ego of the Commission for the purpose of receipt of pre-action notice, and therefore any mention of the Secretary for the purpose of issuance of pre-action notice is a reference to the Commission.  He submitted that Exhibit C6 cannot suffice as a pre-action notice as it does not satisfy the requirements of Section 20 (4) of the PSC Act citing Umukoro v. Nigeria Ports Authority [1997] 4 NWLR (Pt. 502) 656.

[16] Learned Counsel submitted on issue two `that the Defendant is an established Federal Executive body which exercises its powers pursuant to Section 153 (1) (m) and (2), and paragraph 30 Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria. He submitted that the Supreme Court has interpreted the above powers and functions of the Commission in Nigeria Police Force v. Police Service Commission [2023] 95 NSCQR 262 Pt.1 p.318. It was his submission that the Public Service Rules is a subsidiary legislation subordinate to both the Constitution  and the PSC Act, both of which empower the Defendant to exercise disciplinary control over officers of the NPF and the Claimant. That Section 18 (8) of the Police Act 2020 relied upon by the Claimant to claim that his retirement is 60 or 35 years whichever comes earlier does not exist, having been nullified by the Supreme Court in Nigeria Police Force v. Police Service Commission (supra).

 

[17] Learned Counsel submitted on issue 3 that to be entitled to claim any benefit as a public servant, including as a member of the NPF, the individual concerned must demonstrate his eligibility to have been employed into the public service upon which the claim derives. That one of such eligibility test is the mandatory service under the National Youth Service Corps (NYSC). Counsel argued that the presentation of NYSC Certificate is a pre-requisite for employment in the Defendant. That by failing to produce any evidence of participation or service with the NYSC at the trial, the Claimant is caught by the imputation that the evidence not produced is unfavourable, relying on Section 167 (d) of the Evidence Act 2011.

 

[18] Learned Counsel submitted that the Claimant is not entitled to the reliefs he is seeking as the Defendant acted in accordance with its constitutional powers. He submitted that the constitutional powers of the Defendant do not extend to payment of salaries of Police Officers which is the responsibility of the NPF who is not a party in this suit, citing AMCON v. Sure Worldwide Ventures Nig. Ltd and Ors. [2024] LPELR – 62162 (SC).  He submitted that no claim of general damages can be maintained in a suit based on contract. Counsel in conclusion urged the Court to hold that the Claimant’s case is frivolous, unwarranted, unmeritorious and liable to be dismissed with a substantial cost of ?10,000,000.00 (Ten Million Naira). 

 

[19] The Claimant submitted two issues for determination:

1.         Whether having regard to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Public Service Rules and the Nigeria Police Act 2020, the Claimant can be compulsorily retired from the service of the Defendant before attaining the mandatory retirement age of sixty (60) years or thirty-five (35) years of pensionable service and or have his employment terminated in the absence of any misconduct.

2.         Whether having regard to the circumstances of this case, the evidence adduced before this Honourable Court, the Claimant is entitled to the reliefs sought.

[20] Learned Counsel begun by responding to the Defendant’s issues. He submitted that  the Supreme Court has put the issue regarding the details of a pre-action notice to rest in Amadi v. NNPC [2000] 10 NWLR (Pt.674) 76, at p. 110-111. He submitted that the  Defendant’s issue 3 did not emanate from the case or defence made by the Defendant and should be discountenanced in its entirety. He submitted that the law is settled that facts elicited under cross-examination which is not based on the pleading, go to no issue, citing Okwejiminor & Anor. v. Gbakeji [2008] LPELR-2537 (SC) at P.19.

[21] Learned counsel submitted on issue one that by the combined provision of Section 318 (1) (h) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Rule 020810 (i) and (ii) of the Public Service Rules, 2009 and Section 18 (8) of the Nigeria Police Act, 2020 members of the Nigeria Police Force are Public Servants whose mandatory retirement age is sixty (60) years (now 65 years by recent amendment to Section 18 (8)) or thirty-five (35) years of pensionable service whichever is earlier. He submitted that is trite law that where the action of a party such as the Defendant in this case has been challenged; the Defendant is required to show where it derived its powers to compulsorily retire and or terminate the Claimant's employment before his mandatory retirement age, citing P.H.M.B v. Ejitigba [2000] 11 NWLR (Pt. 677) 154 at 169 Para. D. That the fact that there is no known law which provides for the compulsory retirement of Defendant's employees once a junior officer is promoted ahead of a senior, the evidence of the Claimant is uncontroverted. 

[22] Learned Counsel submitted that the Defendant's action in the purported compulsory retirement of the Claimant was not only unlawful and against established tradition of the Nigeria Police Force, but has also frustrated the career progression of the Claimant and it ought to be declared null and void by the Court, citing P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380 at 409 paras. B-D. That the Defendant's action in purportedly retiring the Claimant compulsorily before his mandatory retirement age if not nullified in the instant case would defeat the main objective of Rule 020810 (i) of the Public Service Rules which is aimed at protecting employees with pensionable employment, and he cited Comptroller-General of Customs v. Gusau [2017] 18 NWLR (1598) 353 at 385 Para. A-G. Counsel argued further that any employment which is protected by statute must be determined in the way and manner prescribed by the relevant statute and any other manner of termination/retirement or removal from office of such employee which is inconsistent with the statute is therefore null, void and of no effect whatsoever, citing Ibama v. SPDC Ltd [2005] 17 NWLR (Pt. 954) 364.

 [23] Learned Counsel submitted on issue 2 that the Court under Section 19 (b) of the National Industrial Act, 2006 may in all other cases and where necessary make any appropriate order, including a declaratory order and cited Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 34) 162; and That any promotion done by the Defendant in disregard to Section 4 (3) of its own establishment Act, is null and void, conveying no benefit whatsoever. He submitted that the purported compulsory retirement and or termination of Claimant's employment before his compulsory retirement age is in violation of the provision of Rule 020810 (i) of the Public Service Rules, 2009 and Section 18 (8) of the Police Act, 2020; an exercise in futility which cannot stand citing   UAC Ltd. v. Macfoy [1961] 3ALL ER 1169.

[24] Learned Counsel argued that the action of the Defendant in the purported compulsory retirement of the Claimant six (6) years (now 11 years) prior to his mandatory retirement age notwithstanding Claimant's willingness to serve his fatherland and reach the peak of his career amounts to a wrong which requires the exercise of this Court's discretion and award of general damages against the Defendant, citing Kupolati v. MTN (Nig) Comms Ltd [2020] 13 NWLR (Pt.1740)1 at 16 paras. B-D. That judicial authorities and the Rules support the principle that a successful party to a suit should be entitled to indemnity in form of a cost as cost follows event, relying on Order 55 of the Rules of the Court. In conclusion, he cited the decision of this Court in AIG Mbu Joseph Mbu v. Police Service Commission (Unreported), Suit No. NICN/ABJ/198/2017 delivered on July 3^rd, 2023 and urged the Court to follow it and grant all the Claimant’s reliefs.

 Reply

[25] Replying on point of law, learned defence counsel submitted that the decision in AIG Mbu Joseph Mbu v. Police Service Commission cannot be followed in the instant suit for the Claimant must found his action on his right and entitlement and not on that of another person. He submitted that NPF v. Police Service Commission [2023] 95 NSCQR 262 (Pt. 1) p. 318 interpreted the functions and powers of the Defendant, and Section 18 of the Nigeria Police Act, 2020 was not considered in AIG Mbu Joseph Mbu v. Police Service Commission by the Court. He urged the Court to dismiss the Claimant’s claims in its entirety.

Decision

[26] I have carefully considered the originating processes, the evidence adduced, the submissions of Counsel and authorities relied on by parties in their final addresses. I will begin with the preliminary issues raised in the final address of the Defendant. The first is the issue of the pre-action notice. The Defendant asserts that the Claimant failed to issue a pre-action notice within the meaning and letters of the Police Service Commission Act. This being a jurisdictional issue is a fundamental and threshold issue. A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and the case comes before the Court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v Nkemdilim (1962) NSCC 374 at 379-380, Ogara v Dialoke (2019) 11 NWLR (Pt 1683) 191.  

[27] Section 20 (3) and (4) and Section 21 of the Police Service Commission (Establishment, etc) Act, 2001 provides:

(3) No suit shall be commenced against a member of the Commission, the Secretary, officer or employee of the Commission before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Commission by the intending plaintiff or his agent.

(4) The notice referred to in Subsection (3) shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief, which he claims.

Section 21:

A notice, summons or other document required or authorized to be served upon the commission under the provisions of this Act or any other law or enactment may be served by delivering it to the Secretary or by sending it by registered post and addressed to the Secretary at the principal office of the Commission.

[28] The point to note is that the Claimant has not initiated this suit against a member of the Commission as provided in Section 20(3). Rather, the suit is instituted against the Police Service Commission. That notwithstanding, the Claimant by exhibit C6 instructed his counsel to write a letter to the Defendant through the Defendant’s Secretary outlining his grievances. He expressly stated that: “this letter serves as our Pre-Action Notice thereof.” The Defendant wrote to acknowledge receipt of this pre-action notice by exhibit C7. Now, a pre-action notice is a form of notice issued by an aggrieved person which is expected to be formally served on the other party before the commencement of an action, The purpose and nature of a pre-action notice is to bring the grievance of the Claimant to the notice of the Defendant who would then be in a position to decide whether or not to settle and compromise the claim or allow the matter to go to Court, and has the benefit and advantage of either invoking the discretion or not; see International Tobacco Co Plc v NAFDAC [2007] 10 NWLR (Pt 1043) 613 at 631-632 para F-F.

 [29] The pre-action notice must meet all the conditions laid down in the statute stating the reasons why the aggrieved party is instituting a legal action against the opponent, intimate the opponent of what to expect or be confronted with should the action proceed to Court, see Nigerian Ports Ltd v SES [2016] 17 NWLR (pt 1541) 191. I find the contents of the letter are in compliance with the provisions of Section 20 (4) of the Police Service Commission Act, see Amadi v NNPC (2000) 10 NWLR (Pt 674) 76 at 110 -111 The Defendant is not in doubt as to the cause of action and the particulars of the claim. I hold that the Claimant issued the Defendant with a pre-action notice. The Court is not deprived of jurisdiction to entertain and determine this matter.

[30] The second preliminary issue is the failure to tender documentary evidence of service under the National Youth Service Corp Act raised in the Defendant’s final address as issue 3. There are no pleadings by either party on the issue of NYSC certificate by the Claimant. The law is settled that facts elicited under cross examination that is not based on pleadings goes to no issue, see Okwejiminor v Gbakeji (2008) 5 NWLR (Pt 1079) 172 at 212 – 213 para F-A; (2008) LPELR-2537 (SC) 19. This issue is discountenanced in its entirety.

[31] The law is settled that in the determination of the employment rights, it is the employee who complains that his/her employment contract has been breached that has the burden to place before the Court the terms and conditions of his/her employment that provides for his/her rights and obligations; and the manner such terms and conditions were breached. See Buka Modu Aji v Chad Basin Development Authority & Anor [2015] 3-4 SC (Pt. III) 1 at 15, Oforishe v Nigerian Gas Co Ltd (2017) LPELR-42766 (SC), Nigeria Security Printing & Minting Plc v Charles Umoh [2022] LPELR-56924 (CA) Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. The Claimant has placed before the Court his statutory declaration of age (Exhibit C1), letter of appointment as a Cadet ASP (Exhibit C2), University degree certificate (Exhibit C3), letter of promotion to DIG (Exhibit C4), notification of compulsory retirement (Exhibit C5), Solicitor’s letter/pre-action notice (Exhibit C6), Defendant’s acknowledgement (Exhibit C7), newspaper/on line publications (Exhibit C8). The Defendant placed before the Court extracts from minutes of the 21^st plenary meeting (Exhibit D1).

[32] I will adopt the issues formulated by the Claimant as they encompass all the issues submitted by the parties for adjudication. They are reproduced below for ease of reference:

1.         Whether having regard to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Public Service Rules and the Nigeria Police Act 2020, the Claimant can be compulsorily retired from the service of the Defendant before attaining the mandatory retirement age of sixty (60) years or thirty-five (35) years of pensionable service and or have his employment terminated in the absence of any misconduct.

2.         Whether having regard to the circumstances of this case, the evidence adduced before this Honourable Court, the Claimant is entitled to the reliefs sought.

[33] By Section 318 of the 1999 Constitution as amended, “Public service of the Federation” means service of the Federation in any capacity in respect of the Government of the Federation, and includes service as:

(h) Members or Officers of the armed forces of the federation or the Nigerian Police Force….

 The Public Service Rules (PSR) regulate the conditions of service of Federal Public Servants. They invest the Public Servant, over whom they prevail, a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law; see Comptroller-General of Customs v. Gusau [2017] 18 NWLR 353 at 385 paras A-G; P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380, Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, Shitta-Bey v Federal Public Service Commission [1981] 1 SC 26 at 35, Stephen Imuzei Akhiojemi & Anor v. Administrative Staff College of Nigeria & Anor [2014] 43 NLLR (Pt. 135) 240. I find that the Claimant’s appointment is one with statutory flavor.

[34] The Public Service Rules have been made pursuant to the powers conferred by the 1999 Constitution (as amended) and have constitutional force, see Comptroller-General Of Customs v Gusau (2017) 18 NWLR (Pt 1598) 353 at 385 Para. A-G, where the Supreme Court per Ejembi Eko JSC succinctly stated the legal status and the aim of the Public Service Rules as follows:

It is crystal clear from the express provisions of section 153(1)(a), 159(1), and 160, read together with paragraph II of the Third Schedule, of the 1999 Constitution, (as amended) that the Public Service Rules are made pursuant to the powers conferred on the Federal Civil Service Commission by the Constitution. See Civil Service Commission v. J.O. Laoye (1989) 4 SC (Pt.11) 1; (1989) 2 NWLR (Pt. 106) 652. They are accordingly a bye-law of the Constitution. They have been made with the main object and intention of protecting officers, particularly those holding pensionable employment, in the Public Service of the Federation.

[35] The Claimant is a public officer, with the rank of Deputy Inspector General in the Nigeria Police Force. The gravamen of his complaint is that the Defendant without complying with the regulations in the Public Service Rules, specifically Rule 020810, and Section 18 (8) of the Nigeria Police Act which both provide that an officer shall retire from service upon attaining the age of 60 years or thirty-five (35) years in service whichever is earlier compulsorily retired him when he had not attained 60 years or 35 years in service, and when there was no allegation of wrong doing against him. The evidence adduced (exhibit C1) reveals that the Claimant was born on 1^st June 1970. He would therefore attain the age of 60 years on 1^st June 2030. It is the evidence of the Claimant that the Defendant first announced his compulsory retirement on the media through newspaper/on line publications on the 28^th August 2023 (Exhibit C8) before he received the letter through the Force Secretary. The newspaper/on line publications on the 28^th August 2023 announced the Claimant’s compulsory retirement together with 3 other Deputy Inspector-Generals of Police for violating police tradition, and disloyalty (Exhibit C8). The Defendant failed to provide a shred of evidence to justify the on line publications.

[36] The official letter of notification of compulsory retirement (C5) is reproduced as follows:

PSC/CHR/IGP/VOL.1/094                                                  25^th August, 2023

AP. NO. 46489 DIG Moses Ambakina Jitoboh, mni

Department of Information and Communication Technology,

The Nigeria Police Force,

Force Headquarters,

Abuja.

 

LETTER OF NOTIFICATION OF COMPULSORY RETIREMENT

 

In consonance with Section 6 of the Police Service Commission Act, 2001, para d, e, & f, which empowered the commission to formulate and implement policies aimed at efficiency and discipline to the Nigeria Police Force, as well as identifying factors inhibiting or undermining discipline in the NPF, you are by this letter officially notified and mandated to proceed on compulsory retirement from the service of the Nigeria Police Force, with immediate effect from Friday, 25^th August 2023.

2.         This decision of the Commission is premised on the fact that you were senior to the acting Inspector-General of Police, prior to his appointment on 19^th June, 2023.  Consequently, it is imperative that discipline which is the bedrock of the NPF is upheld, aimed at discouraging status reversal which is inherently dangerous to the exercise of authority by the Inspector-General of police.

3.         While wishing you a successful life in retirement, you are to note that your contributions to peace and security of our country, Nigeria, are appreciated, please.

 

Dr. Solomon E. Arase, CFR, NPM, fdc, FCIArb,

Inspector-General of Police (rtd)

Chairman

Police Service Commission

 

[37] The reason given for the compulsory retirement of the Claimant with immediate effect is: “that you were senior to the acting Inspector-General of Police, prior to his appointment on 19^th June 2023”. This is not evidence of wrongdoing by the Claimant. The Claimant asserts that the Defendant had no valid Board to take any decision purporting to retire or promote any Police Officer. There is no evidence of this before the Court. The Defendant has placed before the Court extracts of minutes of its 21^st Plenary meeting held on 7^th July 2023. The meeting considered the memorandum on re-organization of the Nigeria Police Force following the appointment of a new Inspector General of Police. It is stated in the extract of the minutes that there is no policy in the Nigeria Police Force unlike the Armed Forces where superiors were by tradition and policy expected to tender their resignations on the appointment of their juniors as Service Chiefs. The meeting decided that DIG’s who were senior to or at co-ordinate level with the Acting Inspector-General of Police should voluntarily retire from Force on or before Friday 14^th July 2023; and that on failure to comply, the Commission should retire the affected DIG’s in the public interest with effect from the 14^th July 2023.

[38] It is my considered view that the reasons proffered in the extract from the minutes, and the notice of compulsory retirement are at best mere statements of policy intent. They have no force of law, and they are in conflict with the provisions of the Public Service Rule 020810, and Section 18 (8) of the Nigeria Police Act which read together provide that the compulsory retirement age for all grades of officers in the public service shall be 60 years or 35 years of pensionable service whichever is earlier. I find from the extract of the minutes that it is not the custom of the Nigeria Police, and there is no policy that senior officers are expected to tender their resignation on the appointment of their junior as Inspector General of Police. It is imperative on the Defendant to show the Court where it derived its powers to compulsorily retire the Claimant who is a public officer with no blemish, thereby terminating his appointment before the constitutional/statutory mandatory retirement age, see PHMB v Ejitigba (2000) 11 NWLR (Pt 677) 154 at 169. The Defendant has not shown this to the Court. Furthermore, the Defendant has not placed any evidence before the Court showing that it notified the Claimant to voluntarily retire from service on or before Friday 14^th July 2023. The Defendant did not compulsorily retire the Claimant on or before Friday 14^th July 2023 in the public interest as stated in the extracts of the minutes (Exhibit D1). The evidence before the Court is that the Claimant first heard about his compulsory retirement from the media on August 28, 2023 before he received the notification dated 25^th August 2023.

[39] I find that the Claimant has been in the service of the Nigeria Police Force since 1994 without any allegations of wrongdoing in the course of his duties; nor has he been found wanting in the performance of his duties. There is no evidence before the Court that the position of Deputy Inspector General in the Police Force has been abolished. The state of the law today is that the Claimant cannot be compulsorily retired from service by the Defendant unless he has attained 60 years of age, or has spent 35 years in service whichever is earlier, see Comptroller-General Of Customs v Gusau supra. The Defendant in its letter of compulsory retirement appreciates the Claimant’s “contributions to peace and security of our country, Nigeria.” This is indicative of the fact that the Claimant discharged his duties creditably. He was not compulsorily retired in the public interest as there would have to be proof of public interest and justification before the Court in such a situation.

[40] The Claimant testified that in the history of the Nigerian Police Force there is in existence evidence that when a junior officer is appointed to a higher rank, his seniors are not compulsorily retired but allowed to serve in different capacities until retirement and he gave several instances and named the officers in his deposition. All of this evidence is unchallenged, deemed admitted, and must be accepted by the Court, see Elizabeth Mabamije v Hans Wolfgang Otto [2016] LPELR-26058 (SC). This corroborates the extract of the minutes that there is no policy in the Nigeria Police Force where superiors are by tradition and policy expected to tender their resignations on the appointment of their juniors as Inspector General of Police.

[41] I find that on the 25^th August 2023 the date the Claimant was compulsorily retired, he had not attained the age of 60 years, or spent 35 years in service; neither was he found wanting in the discharge of his duties. There is no evidence of wrong doing against the Claimant before the Court. The Claimant would have spent 35 years in service on 10^th June 2029, and would be 60 years on 1^st June 2030. Therefore, the Claimant would qualify for retirement on 10^th June 2029 after 35 years in service, being earlier than 60 years as provided by the Public Service Rules. Now, to force a Public Officer into retirement before he gets to retirement age is an unusual action against him, see PHMB v Ejitagha supra. The Public Service Rules are to engender in the Public Officer security of tenure that is psychologically needed for patriotic and honest discharge of his/her duties especially as in this instance a Senior Police Officer, Comptroller-General Of Customs v Gusau supra. The Claimant is a career Police Officer of the established and pensionable cadre who is guaranteed security of tenure by the Public Service Rules.

[42] I hold that the Claimant’s premature compulsory retirement through newspaper publications, and by the letter of notification (exhibit C5) is unlawful, null and void and of no effect, his employment being one with statutory flavor. See P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380 at 409 paras B-D, Comptroller-General of Customs v. Gusau supra, AIG Mbu Joseph Mbu v Police Service Commission (unreported) Suit No: NICN/ABJ/198/2017 judgment delivered July 3, 2023. The compulsory retirement of the Claimant as Deputy Inspector General of Police on the 25^th August 2023 by the Defendant vide Exhibit C5 is hereby set aside.

[43] The Claimant is entitled to automatic reinstatement; and he remains Deputy Inspector General of Police up until 10^th June 2029 when he would have served for 35 years. He is entitled to his salaries, allowances, and the perquisites of his rank and office as Deputy Inspector General from the 25^th August 2023. It is ordered that the Claimant be paid all his outstanding salaries and allowances, see Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589; PHCN Plc v. Offoelo [2013] 4 NWLR (Pt 1344) 380.

[44] The Claimant has asked for an award of general damages. General damages are the damages that the law presumes to be the consequence of the act complained of and unlike special damages, a claim for general damages does not need to be specifically pleaded and specially proved by evidence. The award is quantified by what in the opinion of a reasonable person is considered adequate loss or inconvenience that flows naturally, as generally presumed by law from the wrongful act of the Defendant; see Kupolati v MTN (Nig) Comms Ltd [2020] 13 NWLR (Pt 1740) 1 at 16 para B-D; Diamond Bank Plc v. Wellcare Alliance Ltd [2015] LPELR-40762 at 27-28.

[45] There can be no doubt that the premature compulsory retirement of the Claimant after years of meritorious service to his Country, and when no wrongdoing was found against him has caused him embarrassment and pain. His appointment was abruptly terminated and this carries a stigma that will be with him for the rest of his life; his career progression suddenly came to a halt, his dignity and self worth as Deputy Inspector General of Police no doubt affected. The Claimant is entitled to an award of general damages pursuant to the provisions of section 19 (d) of the National Industrial Court Act 2006. I award the Claimant general damages in the sum of N50 Million Naira (Fifty Million Naira) for the embarrassment, pain and stigma caused by the wrongful action of the Defendant.

[46] The Claimant has proved his case. I hereby Declare and make following Orders:

a)      It is Declared that the compulsory retirement of the Claimant as Deputy Inspector-General of Police by the Defendant before his mandatory 60 years retirement age or 35 years in service by a letter dated 25^th August, 2023 is wrongful, unlawful, null and void, and is a violation of Rule 020810 of the Public Service Rules and Section 18 (8) of the Nigeria Police Act 2020, respectively. The compulsory retirement of the Claimant is hereby set aside.

 

b)     The letter of notification of compulsory retirement dated 25^th August 2023 with reference number PSC/CHR/IGP/Vol 1/094 is set aside.

 

c)      It is Declared that the Claimant was and remains an officer of the Nigeria Police Force until the 10^th day of June, 2029 when he would have attained 35 years in service and be qualified for retirement.

 

d)     The Claimant is reinstated into the Force with effect from 25^th August 2023 and is entitled to all his salaries and allowances. It is ordered that the Claimant be paid his outstanding salaries and allowances immediately.

 

e)      The Defendant is ordered to pay the Claimant general damages in the sum of N50,000,000.00 (Fifty Million Naira).

 

f)      Costs awarded that Claimant in the sum of N750,000.00 (Seven Hundred and Fifty Thousand Naira).

 

 Judgment is entered accordingly.

 

 

                                                _______________________________

                                                 Hon Justice O. A. Obaseki-Osaghae