IN THE NATIONAL
INDUSTRIAL COURT OF NIGERIA
IN THEABUJA JUDICIAL
DIVISION HOLDEN AT ABUJA
BEFORE HIS LORDSHIP
HON. JUSTICE B. B. KANYIP, PHD, OFR
PRESIDENT, NATIONAL
INDUSTRIAL COURT OF NIGERIA
DATE: 21 MAY 2024 SUIT NO. NICN/ABJ/321/2023
BETWEEN
Alo William Nwankwu - Claimant
AND
1. Head Of Civil Service of the Federation
2. Attorney General of the Federation - Defendants
REPRESENTATION
FemiAdedeji, with MissAsmau Yunusa,
for the claimant.
T. D. Agbe, Assistant
Chief State Counsel, for the 1st defendant.
Mrs Maimuna Lami Shiru, Director Civil Litigation and Public Law, with Mrs Habibatu U. Chime, Deputy Director
Civil Litigation and Public Law and Miss Oyebisola Bajulaiye, Assistant Chief State Counsel,
for the 2nd defendant.
JUDGMENT
INTRODUCTION
1. The claimant
filed this suit on 10 November 2023 vide an originating summons. The
originating summons is brought pursuant to Order 2 Rule 17 of the National
Industrial Court of
Nigeria (Civil Procedure) Rules 2017, section 6(6)(b)
of the 1999 Constitution
and under the
inherent jurisdiction of the Court.
2. The claimant submitted
three questions for determination, namely:
(1) Whether Tenure Policy in the Federal Civil Service remains suspended having regard to the subsisting directive
of the Federal Government (President) as communicated via the circular dated 20th July,
2016 with reference No. HCSF/428/S.1/139.
(2) Whether the discriminatory
implementation of the Tenure Policy in the Federal Civil
Service of the Federation is not illegal
as it violates the claimant
right to freedom
from discrimination guaranteed by section 42 of the Constitution of the Federal Republic
of Nigeria.
(3) Whether the provisions of Rule 020909
of the Public Service Rules, 2021 which became
operative with effect from 27th July, 2023 which
seeks to retroactively and discriminatorily retire
the claimant from the Federal Civil Service before the attainment
of the retirement age of 60 years or 35 years of service amounts to an unfair
labour practice and a gross violation
of section 42 of the 1999 Constitution
of the Federal Republic of Nigeria (as amended).
3. The claimant then prayed for six
reliefs, namely:
(1) A DECLARATION that the Respondents lack the requisite powers to reintroduce the tenure policy into the Civil Service of the Federal Government of Nigeria, same having been suspended by virtue of the directive of the president of the Federal Republic of
Nigeria as communicated in the circular dated 20th July, 2016 with reference No. HCSF/
428/S.1/139.
(2) DECLARATION THAT the discriminatory implementation of tenure policy
in the Federal Civil Service of the Federation is illegal as it violates the Claimants’ right to
freedom from discrimination guaranteed by Section 42 of the 1999 Constitution of the
Federal Republic of Nigeria?
(3) A DECLARATION that by virtue of Rule 020908 of the Public Service Rules 2021,
the claimant can only be compulsorily retried upon attainment of the age of 60 years or 35 years
in the civil service of the federation.
(4) AN ORDER of PERPETUAL
INJUNCTION restraining the Respondents whether by themselves, their agents, privies and servants from further implementing tenure policy in the federal civil service same having being suspended via the CIRCULAR DATED 20th
JULY, WITH
REFERENCE NO: HCSF/428/S.1/139.
(5) AN ORDER of PERPETUAL
INJUNCTION restraining the Respondents whether by themselves, their agents, privies and servants from further subjecting the Claimant to the
discriminatory practice of tenure
police.
(6) AND any order
or Orders this Honourable Court may deem fit to make in the
circumstance of this case.
4. The originating summons is supported
by an affidavit, with five exhibits, and a written
address.
5. Accompanying the originating summons was a motion on notice also filed
on 10 November 2023 mainly praying for an interlocutory order restraining the defendants from implementing the Tenure Policy pending
the determination of this suit. This motion was not moved. And so it is deemed abandoned, and in any event
overtaken by the fact of this judgment.
I so rule.
6. In response, the defendants separately entered
appearance and filed
their defence processes.
The 2nd defendant filed first. His counter-affidavit
and written address were filed on 19
December 2023.
7. The 1st defendant on his part filed his counter-affidavit, with Exhibits HOS 1, 1A, 1B, 2, 3A,
3B, 3C, 4A, 4B, 4C and 5, and the supporting
written address on 11 January
2024.
8. The claimant’s response was that on 13 February 2024, he filed a further and better affidavit
in support of the originating summons
and a reply on points of law.
THE SUBMISSIONS
OF THE
CLAIMANT
9. The claimant framed the issues for determination in terms of the three questions he posed.
10. For question/issue (1), whether
the tenure policy remains suspended given the circular
dated 20 July 2016 with Ref. No. HCSF/428/S.1/139, the claimant answered in the affirmative; and submitted that the subsisting directive
(as contained in Exhibit
4) of the President of the Federal Republic
Nigeria who, for all intent and purposes, remains the principal
of the Head of Service of the Federation, Agencies and Ministries in the Federal Republic of Nigeria, remains enforceable until same is set aside by another directive
issued by the President. That since the 1st
defendant cannot overrule
the President of the Federal Republic
of Nigeria (his principal), it
therefore becomes elementary that the 1st defendant’s directive reintroducing tenure policy via
the circular of 27 July 2023 is illegal and, therefore, unimplementable. That with the benefit of hindsight, it is trite that the 1st defendant; HEAD OF CIVIL SERVICE OF THE FEDERATION remains subject to the directive of its principal,
the President of the Federal Republic
of Nigeria, and cannot take any decision capable
of overriding or conflicting with the directive
already issued by the president. This is so because he derives the totality of his powers from the magnanimity of the President of the Federal
Republic of Nigeria.
11. The claimant
went on that putting the above submission in perspective, on 20 July 20 2016, the
1st defendant communicated the directive of Mr President to suspend the tenure policy in the following words:
SUSPENSION OF THE TENURE POLICY IN THE FEDERAL CIVIL SERVICE With
reference to letter No. SH/COS/100/A/1462 dated 17th June, 2016, I write to convey Mr. President’s directive
that tenure policy
in the Federal Civil
Service ls Suspended with
immediate effect.
12. That the law remains that when interpreting any legal document
such as Exhibit
4, the cardinal rule of interpretation of legal instruments, documents or agreements is the presumption
that parties intended what they said, referring
to AG, Nasarawa State v. AG, Plateau State [2012]
LPELR-9730(SC). That upon assurance that the party means what it says, it is imperative that when words are clear and unambiguous it must be accorded
its ordinary meaning, citing International Energy Insurance Plc v. Sterling Bank [2021] LPELR- (incomplete citation) and Esset Petroleum Ent. (Nig) Ltd v. Petroleum Equalization Fund (Mgt.) Board & anor [2019] LPELR-47355(CA). That in the instant case, the directive of the President as contained in Exhibit 4 is clear as to the intention to immediately suspend the application of tenure policy in
the Civil Service. The words are clear and unambiguous, and so the Court should give it the ordinary meaning and hold that the tenure policy in the Federal Civil Service stands
suspended.
13. More so, that the age long principle that an agent is duty bound to avoid conflict of interest in
discharging his obligations to his principal
makes it totally impossible for the 1st defendant
to undermine the directive of the President, citing Aribisala Properties Ltd v. Adepoju
[2015] LPELR-25589(CA) and Nasr & anor v. Rossek [1973] LPELR-1946(SC). That the decision of the 1st defendant to reintroduce the tenure policy
notwithstanding the clear directive of his principal (the President) suspending the policy is a clear case of disloyalty, urging the Court to so hold.
14. The claimant proceeded to submit that the law is settled, in all cases where there is a breach
of a fiduciary duty and/or disloyalty which has resulted, as in the case at hand, in an unconscionable tenure
policy, it will be inequitable that the policy
should be allowed to stand.
That the claimant complaining of the policy is entitled, as requested, to be relieved
against it in equity and, as incidental to the relief, he may ask that the document embodying
the policy should be
set aside, referring to the case of Armstrong v. Jackson [1917] 2 KB 822 at pp. 825 - 826.
Furthermore, that the Court, in the exercise of its equitable
jurisdiction, has an overriding power
to set aside any unconscionable
policy in the interest of justice and fairness.
15. The claimant then urged the Court to resolve issue (1) in his favour and hold that the tenure policy in the Federal Civil Service stands
suspended.
16. On question/issue (2), whether the discriminatory
implementation of the tenure policy in the Federal Civil Service is not illegal
as it violates the claimant’s right to freedom from
discrimination guaranteed by section 42 of the 1999 Constitution,
the claimant submitted that by
section 42 of the 1999 Constitution, the fundamental right
of every person to freedom from
discrimination is guaranteed. That equality of opportunity and treatment in employment and occupation is a germane aspect of the overall principle
of equality, which is now a universal norm. That it is one of the most fundamental principles underlying any democratic society and is set
forth in many international instruments, national constitutions and laws.
17. It is the claimant’s contention that the decision of the defendants to reintroduce the tenure policy to its employment while same is totally disregarded for other Permanent Secretaries and some selected Directors is discriminatory by virtue of section 42 of the 1999 Constitution and
Article 2 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 2004. To the claimant, sections 42 and 14 of the 1999 Constitution
contain anti-discrimination clauses prohibiting selective and discriminatory
application of laws and policies in
favour of a particular group, section or sex to the prejudice of others. The claimant
then referred to the African Charter
on Human Rights, the United
Nations Declaration on Human Rights and several international treaties ratified
by Nigeria, which contain anti-discriminatory
clauses similar to the above referenced constitutional
clause. That Articles 7 and 21 of the United
Nations Declaration of Human Rights, Articles 2(2) and (3) of the International Covenant on Economic and Social Cultural Rights and Articles 2, 13(2) and (3) and
Article 19 of the African Charter of Human and Peoples Rights clearly create anti-discrimination
provisions that this Court is under a legal obligation to apply. The claimant then relied on Dapaah & anor v. Odey
[2018] LPELR-46151(CA), Lafia LG v. Gov, Nasarawa State
[2012] 17 NWLR (Pt. 1328) 95.
Otunba Oyewole Fashawe v. AG, (Fed) & 3 ors (supra) at 102 (incomplete citation), Haliru v.
FRN [2008] All FWLR (Pt. 425) 1697 at I719 and Margaret Chinyere Stitch
v. AG of the Federation
& ors [1986] LPELR SC.88/1985.
18. The claimant went on that by the affidavit
in support of the originating summons, the claimant has shown that the tenure policy did not apply to several Directors and Permanent
Secretaries before him and other Permanent Secretaries that are still serving in the Federal Civil Service. That it is also interesting to observe that the defendant
has failed to issue any guide for the implementation of the policy, thus, the malicious implementation. That the 1st defendant having refused to implement
the tenure policy on the other Permanent Secretaries and Directors
in the health sector cannot single out the claimant
for the purpose of implementation of the policy in total violation of section 42(1) of the 1999 Constitution,
Article 19 of the African Charter and Article 7 of the Universal Declaration of Human Right (UDHR). The claimant also relied on Lafia LG v. Gov, Nasarawa State [2012] 17 NWLR (Pt. 1328)
94, where a policy,
which required all unified local government staff serving in local government councils other than their
councils of origin to relocate to their local government councils of origin, while staff who were not of Nasarawa State origin to remain where they were working, was declared
illegal and unconstitutional as it breached section 42 of the 1999 Constitution.
19. The claimant
continued that once a policy
as in the instant case runs contrary
to the provisions of section 42 of the 1999 Constitution,
it is by virtue
of section 1(3) of the 1999 Constitution inconsistent with the provisions of the Constitution and is to the extent
of the inconsistency declared null and void, referring to Agbakoba v. AG, Federation & anor [2021]
LPELR-55906(CA). The claimant then urged the Court to resolve issue (2) in his favour.
20. As to question/issue (3), whether
Rule 020909 of the Public Service Rules (PSR) 2021 which
seeks to retire the claimant before his retiring age or time in service, amounts to an unfair labour practice and discriminatory, the claimant referred to Olusa v. NICO &
ors [2022]
LPELR-57459(CA) where, to the claimant, the Court of Appeal per Adah, JCA (as he then was)
acknowledged the proactive
application of the tenure policy, reviewing
the implication, in these
words:
The appellant from the record before us as claimant before the trial Court was in employment as one of the 1st Respondent’s Director. He, under
the Tenure Policy Circular of the Government requiring directors to retire
after 8 years on the job, retired from service. The circular
was originated and incorporated as Rule 020810(iv)(a) & (b) of the Federal
Government Public Service Rules,
2009. The appellant retired sequel to the policy on 2/2/2016. However, after the said retirement, the Federal Government vide a
letter
dated 17/06/2016 and issued by the 2nd Respondent on 20/06/2016 suspended the
Tenure Policy with immediate effect. By all means, the circular suspending the operation of the Tenure Policy can only be applicable to those who were still in service at the time
of the suspension. The suspension cannot without more retrospectively apply to those who
retired under the Tenure Policy so as to recall them from retirement. The effect of the law is not to wipe down the Policy or to scrap the Policy and its effect. It was meant to
suspend the operation of the Policy. The Policy
suspension can only be valid for those still in service and not those who have retired under the Policy. It is a cardinal
rule of our law that no legislation shall be construed to have retrospective operation unless such is expressly stated in the law. See the cases of - Ojukwu v. Obasanjo & Ors [2004] 12
NWLR (Pt. 886) 169, Afolabi
& Ors v. Governor of Oyo State (1985)
2 NWLR (Pt. 9)
734, Ojokolobo v. Alamu (1987) 13 NWLR (Pt. 61) 377, The Shell Petroleum Development C., of Nigeria Ltd v. chief JoelAnaro & Ors (2015) LPEL 24750 (SC).
21. To the claimant, in Olusa v. NICO & ors, the applicant who retired shortly before the suspension of the tenure policy prayed the court to include
him in the suspension of the policy,
but the court refused his application and held that only persons who are still in service (such like the
claimant in this suit) can benefit from the suspension of the policy. That with insight, from
the decision of the Court of Appeal, the claimant who is privileged to be in service after the
suspension of the policy on 17/06/2016 is qualified to enjoy the suspension of the policy.
Furthermore, that retrospective reintroduction of tenure policy is illegal
and unenforceable. Here,
the claimant adopted his argument
as to issues (1) and (2) as if same is being argued hereunder
and further asseverate.
22. The claimant went on that the conditions of service of members of the Public Service of the Federation are as contained in the Public Service Rules. And by virtue of Rule 020909, Section 9 of Chapter 2 of the PSR 2008, it is part of the conditions of service of claimants to serve in the Public Service of the Federation until they attain the statutory retirement age of 60 years or serve
in a
pensionable capacity
for 35 years, notwithstanding whether they have been promoted to or
assumed office as Directors for eight years or more. That this has thus become a part of their
contract of service and thus a vested or accrued right. That the purpose of the power vested in the Federal Civil Service Commission by virtue of sections 153(1)(a), 159(1) and l80 and paragraph
11
of the Third Schedule to the 1999 Constitution is for the protection of the members of the Public
Service of the Federation and towards
ensuring the security of tenure
of service in order to encourage the members of the Public Service of the Federation
to diligently discharge their duties to the Government of the Federation and with the required level
of patriotism, citing
Comptroller-General of Customs & ors v.
Comptroller Abdullahi
B. Gusau [2017] 18 NWLR (Pt.
1598) 353 at 385.
23. The claimant
continued that the relevant question, therefore, is whether
the Federal Civil Service Commission can in conjunction with the Federal Government of Nigeria, make Public
Service Rules which run contrary
to the object and purpose the Rules are meant to serve as
clearly held and affirmed by the Supreme Court in the aforesaid case. That the answer is clearly
in the negative. That the Public Service Rules must at all times be in line with the object as formulated by the Supreme Court in line with the Constitution;
otherwise, same shall be invalid.
24. That the question waiting to be answered is whether Rule 020909, Section 9 of Chapter 2 of
the PSR 2021 reducing the tenure or length of service of the claimant, a Permanent Secretary of
the Public Service of the Federation,
who is eligible to serve for more than four years before
attaining the mandatory age of 6o years or 35 years of pensionable service, is meant to protect
him or endanger him in terms of security of tenure, which he psychologically needs for patriotic and
honest discharge of his duties. That the answer to this question is also obviously in the
negative. That this provision does not protect
the claimant and same is indeed introducing into the Public Service of the Federation, uncertainty of tenure of service and thereby
completely eliminating from the psyche of the said officers the need to render patriotic
and honest service to the Government of the Federation.
25. On this score alone, that Rule 020909,
Section 9 of Chapter
2 of the PSR 2021 is
unconstitutional as it has not been made in line with the object and purpose of the provisions of sections 153(1)(a),
159(1) and 180 read together with paragraph
11 of the Third Schedule to the 1999
Constitution the basis of which, power, was vested in the Federal Civil Service Commission
to make Rule.
26. That apart from the foregoing, the Supreme Court in Comptroller-General of Customs & ors v. Comptroller Abdullahi B. Gusau [2017] 18 NWLR (Pt. 1598) 353 at 385 set aside the provisions of the Customs regulation in issue (which
like in this case, made it mandatory for customs officers to retire upon holding a particular post for more than ten years) on the ground
that there was already an accrued right and existing conditions of service, which then was based on the 2008 PSR that entitled
them to serve until they attain 60 years or 35 years of pensionable service. That these accrued rights and conditions of service could not, therefore, be altered to
their disadvantage midstream into their service as such alteration, as earlier
explained, was not for
their protection and neither did same engender security of tenure of service in the said
officers.
27. Based on the foregoing, the claimant submitted that the reintroduction of tenure police by the purported implementation of the provisions of the PSR 2O2l is illegal and null and void, urging the Court to resolve this issue in his
favour.
28. In conclusion, the claimant submitted that in view of the peculiar circumstances of this case,
the Court should resist the attempt
by the defendants to reintroduce the tenure policy into the Federal Civil
Service, urging that the Court resolves all the issues canvased in the claimant’s favour and grant all
the reliefs sought.
THE SUBMISSIONS OF THE 1ST DEFENDANT
29. The 1st defendant
started off with a statement of the facts. To the 1st defendant, in 2008, the Public Service Rules was enacted
and became operational, which consisted of policies and guidelines that define the employment
relationship between public servants and the Government.
The Rules also spell out the conditions of service and Human Management Procedure in the
Public
Service. These rules were subject to be amended or altered by circulars validly issued in that
regards. That under the 2008 Rules, Section 8 Rule 020810,
particularly subparagraph
(iv) provided for tenure
policy for Directors and Permanent secretaries notwithstanding the
provisions of paragraph (i) Rule of 020810. This particular Rule was immediately implemented and some of the affected Permanent Secretaries who were affected
were asked to leave the service
and they left.
30. That sometime in 2016, when President Muhammadu Buhari
assumed office, by a circular issued by the Head of Service of the Federation, the tenure policy
was suspended and several Permanent Secretaries who were due to retire from service based on the tenure policy enshrined
in the 2008 Rules became beneficiaries of the suspension and continued
in service till they attained the age of 60 years or had put in 35 years in service, whichever
was the case. In fact,
that the claimant in this case is only contesting his retirement today because of the suspension of the tenure policy.
31. The 1st defendant
continued that it is an undisputed fact as deposed to by the claimant himself in the affidavit
in support, that he was appointed/promoted to the rank of Federal Permanent Secretary
on 12 November 2015. That it is pertinent to state that the employment of
the claimant was wholly regulated
by the 2008 edition of the Public Service Rules. That the only query of the claimant
here is that the introduction of the tenure policy under which he was earlier
appointed/promoted to the rank of a Federal Permanent Secretary
by the 2021 edition of the Public
Service Rules is illegal and unconstitutional
having been earlier suspended by a circular
in 2016. It is thus the 1st defendant’s position that the selfish position taken by the claimant
who ordinarily would have been out of service if not for the suspension of Rule 020810 (iv) is a total misrepresentation
of the law.
32. The 1st defendant
then adopted the issues as submitted and canvassed by the claimant. The 1st defendant,
however, started off with he termed a preliminary argument i.e. an argument as to
the contradictory nature of the claimant’s case. To the 1st defendant, the claimant’s case as presented in the three questions for determination has no locus or direction. In the first place, that
under question one alone,
the claimant seems to be arguing
two ways. On the one hand, the
claimant is arguing that the entire 2021 Edition
of the Public Service Rules lacked Presidential approval and are, therefore, unconstitutional and illegal. On the other hand, the
claimant seems to be challenging only the inclusion of Rule 020909 in the Rules despite the suspension of a similar
Rule in the 2008 Edition of PSR by Mr President.
33. Also, that questions 2 and 3 as presented by the claimant
for determination suggest that the claimant on the one hand is challenging the validity of the 2021 Edition of the Public Service Rules, and on the other hand is only concerned
with the implementation of the said Rules. It is
the 1st defendant’s position that by questions 2 and 3 presented for determination by the
claimant, he has conceded
to the validity of the said Rules but is only complaining about the application of Rules 020909 of the 202l Edition of the Public Service Rules. The 1st defendant
maintained that the claimant is precluded from blowing hot and cold at the same time especially
when he has not made any alternative prayer, citing H.K.S.F. v. Ajibawo [2008] 7 NWLR (Pt.
1087) 511 at 530 and Nyako v. A.S.H.A. [2017] 6 NWLR (Pt. 1562) 347 at 394 as authorities that frown on approbating and reprobating
in the conduct of a case.
34. That in the matter
at hand, the claimant's prayers show clearly that he is out to fish for the most favourable outcome
of his case but unfortunately, instead of asking questions 2 and 3 in
alternative to question one, he mumble
jumble all three questions as
one claim. The 1st defendant then urged the Court to strike out the claimant’s
case for being contradictory in nature.
35. On question (1), whether the tenure policy remains suspended, the 1st defendant
submitted that questions is selfishly drafted
to confuse or mislead the Court. That the right
question the Court will be resolving under this issue is whether upon the coming into effect of the 2021 Edition of the Public Service Rules, the suspension of the tenure policy
for Directors and
Permanent Secretaries under the 2008 Edition of the Rules still subsist. That from this onset, the
suspension of the policy under the 2008 Edition
cannot affect the provisions made under the 2021 Edition of the Public Service
Rules.
36. The 1st defendant
then drew the Court’s attention to the deposition of the claimant
in paragraph 4 of the affidavit
in support of his originating summons wherein he stated thus:
The 1st Defendant is the Head of Civil Service of the Federal Republic of Nigeria and an agent of the President of the Federal Republic
of Nigeria, responsible for making policy
directive for smooth and effective administration of Civil/Public Service.
37. To the 1st defendant, with this deposition of the claimant, it is amazing that the claimant argues that the 2021 Edition of the Public Service Rules, which were presented and approved by the
Federal Executive Council
on “29 September 2021”,
are ultra vires the powers of the 1st defendant considering the above admission made by him, citing Abalaka v. Akinsete & ors
[2023] LPELR-60349(SC) and Ipinlaiye v. Olukotun [1996] 6 NWLR (Pt. 453) 148, which held
that a defendant is entitled to rely upon the admission against interest made by the other party to defeat
the other parties claim.
That in the matter at hand, the claimant who is challenging the powers of the 1s defendant to make the 202l Edition
of the Public Service Rules has admitted in
his affidavit
in support of his originating summons that the defendant has the power to make the Rules.
38. That besides the admission of the claimant
of the power of the 1st defendant to issue policy directives for the effective
and efficient administration of the Civil/Public Service of the
Federation, the principle of law on the presumption of regularity of actions of a public officer as
enshrined in section 168(l) and (2) of EvidenceAct must operate
in aid to the 1st defendant
in the instant case. The
section provides thus:
(1) When any judicial
or official act is shown to have been done in a manner substantially regular, it is presumed
that formal requisites for its
validity were complied with.
(2) When it is shown that a person acted in a public capacity, it is presumed that he had
been truly appointed and was entitled so
to act.
39. Applying this provision to this case, it is the 1st defendant’s submission that the 2021 Edition of the Public Service Rules having been approved by the President and Federal Executive Council, the argument
of the claimant that the Head of Civil Service of the Federation unilaterally issued the 2021 Edition
of Public Service Rules, is no longer
tenable. That there is presumption that every requirement for the issuance of the 2021 Edition
of the Public Service
Rules was met, citing Shitta-Bey v. AG,
Federation & anor [1998] LPELR-3055(SC), which held
that there is the presumption that, where there is no evidence to the contrary, things are presumed
to have been rightly and properly done.
40. The 1st defendant
then urged the Court to discountenance all the arguments of the claimant
that the 2021 Edition of the Public Service Rules is unconstitutional
and ultra vires the powers of the 1st
defendant.
41. However, that assuming without conceding that the Federal Executive
Council approval was/
is not even cited in this matter, the fact is that the claimant has acknowledged the powers of the
Head of Civil Service of the Federation
to act on behalf of Mr President. Accordingly, this has the presumption that the Rules
were validly made with the consent and
approval of the President.
42. The 1st defendant
went on that where the express approval of the Federal Executive
Council was even sought by the President, both the making and the approval of the Public Service Rules followed due process and the Rules were not unilaterally made by the Head of the Civil Service
of the Federation, referring to paragraph 4(xxx) to (xxxii) of the 1st defendant’s counter-affidavit and the exhibits attached thereto
in urging the Court to discountenance the argument
of the claimant on this
point.
43. Additionally, the Public Service Rules as approved by the Federal Executive
supersede any circular that was issued during the operation of the 2008 Edition of the Public Service Rules. That Circular No. HCSF/428/S.1/139 which was issued by the Head of Civil Service of the
Federation after the directive of Mr President cannot
be used to invalidate or nullify any provision of Rule 020909 of the 2021 Edition of the Public Service Rules. That the law is well settled that duties and obligations contained in a statute are only activated
when the law comes
into force, citing Obi-Akejule v.
Delta State Govt. [2009] l7 NWLR (Pt.
1170) 292 at 306.
44. In the matter at hand, that after the suspension of the provision of Section 8 Rule 020810(vi) (a) and (b) by the President, as was communicated through
Circular No. HCSF/428/S.1/139 issued by the Head of Civil Service of the Federation,
the presidential committee set up to look
into the tenure policy for Directors and Permanent Secretaries actually
recommended the
reintroduction of the tenure policy for Directors and Permanent Secretaries, referring
to Exhibit HOS2. That by the passage of the 2021 Edition
of the Public Service Rules and its coming
operation on the 27 July 2023, all the activities of Civil/Public Servants of the Federation are governed by the said Rules
irrespective of when the person was employed
into the Public
Service
of the Federation, citing Modibbo v. Usman [2020] 3 NWLR (Pt. 1712) 470 at 518 - 519. That a typical
appointment letter like the one attached as Exhibit
HOS1 to the 1st defendant’s counter-affidavit
shows clearly that the appointment of every civil/public servant is regulated
by the PSR and every amendment or alteration to the PSR affects all the employees in the service of the Federation.
45. The 1st defendant proceeded that upon the approval
of the 2021 Edition of the PSR by the
Federal Executive Council with the inclusion of Rule 020909
for a tenure policy for Directors and Permanent
Secretaries in the Federal Civil/Public Service, the Federal Executive
Council was fully aware of the existence of the directive
of the President of the Federal Republic of Nigeria that suspended the application of a similar rule under the 2008 edition
of the Rules, and by
allowing the inclusion of Rule 020909
into the 2021 Edition of the PSR, it confirms the restoration of the tenure
policy into the Public Service of the Federation.
It is thus the 1st defendant’s that if it were the intention of the President to do away with the tenure
policy for Permanent Secretaries, it would have been removed entirely
from the 2021 Edition of the PSR.
That the fact that it was deliberated upon and retuned in the 2021 Edition
of the PSR is a clear testimony
that the authorities wanted it
retained, urging the Court to so hold.
46. That apart from the clear intention of the authorities to retain
the tenure policy
in the 2021 Edition of PSR, the status of a circular is inferior
to the PSR. That normally, the status of a
circular in the Public Service is below that of the provisions of the Public Service Rules.
It is beyond argument now that circulars are a common form of administrative documents by which instructions are disseminated in the Public Service and cannot be implied above the PSR, citing Maideribe v. FRN [2014] 5 NWLR (Pt. 1399) 68 at 92, which inter alia held that circulars in
themselves have no legal effect whatsoever,
having no statutory authority.
47. The 1st defendant
went on that the extreme position argued by the claimant on the subsisting nature of the directive
of the President conveyed in Circular No. HCSF/428/S.1/139 is unreasonable and a total misconception
of law. That this Court in Suit No NICN/ABJ/241/2018
between Mrs Ramatu T. Shehu vs Judicial
Service Committee of the Federal Capital Territory & anor delivered on the 3 March 2020, maintained
its firm view that a circular cannot amend the
Public Service Rule except where it confers a benefit on the public servant.
48. That the only question this Court is invited by the claimant
to decide under issue 1 is for the Court
to either declare
the entire 2021 Edition of the PSR as being unconstitutional or to hold that
the earlier directive
of the President, communicated via HCSF/428/S.1/139, which only suspended the application of Rule 020810(iv)(a) and (b), is still extant despite the enactment
of the 2021 Edition of the PSR. That though “President Mohammadu Buhari” is not here, Government is a continua and it is only the President (His Excellency Bola Ahmed Tinubu) that
can rightly deny the validity of the 2021 Edition of the PSR especially as it relates to the tenure
Policy for Permanent secretaries.
49. It is thus the contention of the 1st defendant that this type of argument
as advanced by the claimant is highly unreasonable. To the 1st defendant,
a circular that was issued pursuant to the 2008
edition of the PST cannot in any way be a subsisting circular after the approval
of the 2021 edition of the PSR,
urging the Court to so hold and resolve this
issue against the claimant.
50. The 1st defendant
took questions (2) and (3) together given their interwoven nature. To the
1st
defendant, these questions presented by the claimant
appear preconceived, conclusive and lopsided in construction. That a careful examination of same, also reveal a salient concession on
the part of the claimant
that the PSR 2021, which became
operative with effect from 27 July
2023, was validly enacted, urging the Court to so hold. The 1st defendant
continued that being fully aware that it is limited to the questions presented by the claimant, and after a careful
examination, the questions so presented call for the determination of the
following by this Court:
(a) Whether the implementation of tenure policy in the Federal Civil Service of the Federation is illegal
and violates the claimant’s right to freedom from discrimination guaranteed by section
42 of the Constitution of the Federal Republic of Nigeria; and
(b) Whether the provisions of Rule 020909
of the Public Service Rules, 2021 which became
operative with effect from 27th July, 2023 is retroactive, discriminatory and amounts to an unfair labour practice and a gross violation of section 42 of the 1999 Constitution
of the Federal Republic of Nigeria (as amended).
51. It is the 1st defendant’s contention that the implementation of tenure policy
in the Federal Civil Service of the Federation
is not in any way illegal,
retroactive/retrospective against
the claimant or violates the claimant’s right to freedom from discrimination guaranteed
by section 42 of the 1999 Constitution. That this contention is premised on the fact that Section 9 Rule 020909 of
the PSR 2021 Edition
is not in any way discriminatory or in conflict
with section 42 of the 1999 Constitution. Section 9 Rule 020909 of the PSR 2021 Edition
provides for the tenure policy thus:
A Director or its equivalent by whatever nomenclature it is described in MDAs shall compulsorily retire upon serving eight
years on the post; and a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more (emboldening is the 1st
defendant’s).
52. That the claimant’s complaint
by this suit revolves around the above provision. That it is the
claim of the claimant that the re-introduction of the above
rule (tenure policy
for Permanent Secretaries) in the Public Service of the Federation
is retroactive and discriminatory
against his person, and consequently in breach of section 42 of the 1999 Constitution.
53. On the claimant’s claim on discrimination, the 1st defendant contended that the position of
the claimant is misleading, misconceived and not in any way supported by law. This
is because, a careful
examination of Rule 020909 shows that the Rule is of general application and not
targeted at only the claimant or discriminatory on the basis of his community, ethnic group, place of
origin, sex, religion, circumstance of birth or political opinion.
In other words, the tenure policy applies to all Permanent
Secretaries. That the claimant in this regard has admitted
at paragraph 15 of the affidavit in support of his originating summons that the 1st defendant has on
12 July 2023 directed that all Permanent Secretaries including the claimant that have served for more than four (4) years as Permanent Secretaries should proceed on compulsory retirement in line with the tenure policy in Section 9 Rule 020909 of
the PSR
2021 Edition. That this, no
doubt presupposes a general application that is
not discriminatory in nature.
54. That the fact that the claimant
is affected by the policy does not make Section 9 Rule 020909
of the PSR 2021 edition discriminatory. To further reveal
the weakness of the claimant's argument, the 1st defendant posited that a composite reading of section 42 of the 1999 Constitution shows clearly that for an act or action be said to be discriminatory
in nature, it must
come within the specific items mentioned in section 42(l) of the Constitution. That section 42(1)
(a) and (b) in relation
to the provision of Section 9 Rule 020909 of the PSR 2021 Edition reveals that the said provision as it affects the complaint of the claimant
is not discriminatory. This is
more so that the provision applies to all Directors in MDAs as well as Permanent Secretaries. That
for the tenure policy as contained
in the 2021 Edition of the PSR to be discriminatory in
nature, the application must be limited
to some Permanent
Secretaries and discriminatory to
others
on the basis of their communities, ethnic group,
place of origin,
sex, religion, circumstance of birth or political opinion, citing Uzoukwu v. Ezeonu II [1991] 6 NWLR (Pt. 200)
708 at 779 - 780.
55. It is the 1st defendant’s position that in relating
this position to the facts of this case, the
tenure policy cannot be placed within the list enumerated in section 42 of the Constitution. That the
application of tenure policy cuts across all Permanent Secretaries regardless of their communities, ethnic group, places of origin, sex, religion,
or political opinions. That the claimant cannot in this regard argue that he has been discriminated
against in breach of section 42 of the Constitution. In any case, as deposed to in paragraphs 4(vi), (vii), of the 1st defendant’s counter-affidavit, the appointment of the claimant
is regulated by the Public Service Rules as can be issued or amended from time to time; and the appointment and removal of Permanent Secretaries
is also at the pleasure of the President. That the claimant
is only in this Court today to fight this policy because he wanted to benefit from the suspension of the provision of Section 8 Rule 020810(iv)(b) of the 2008 Edition
of the Rules, referring
to paragraphs 4 xv, xvii, xix, xx, xxi,
xxii and xxiii of the 1st defendant’s
counter-affidavit.
56. That the claimant has woefully
failed to establish both in fact and law how Rule 020909 of the PSR 2021 Edition
is discriminatory against him on the basis of the grounds mentioned in section 42 of the 1999 Constitution. That the policy
cannot be placed
within the wordings of
section 42 of the Constitution. In fact, even a mirage of it cannot be glanced in section 42 of the Constitution. The 1st defendant
then submitted that it is stretching the section beyond its elastic capacity to place the tenure policy
under the domain
of discrimination as contemplated by section
42 of the Constitution.
57. To the 1st defendant, in the interpretation of section 42 of the Constitution, this Court
will realise that the term “discrimination” as contemplated in section 42
is prohibited on the identified
grounds of communities, ethnic groups, place of origin,
sex, religion, circumstance of birth or
political opinions. In other words, section 42 of the Constitution does not admit any form of
alleged discrimination on ground other than those contained in the provision. That it is good law
that a party cannot read into the Constitution what is not there, citing Ikechukwu v. EFCC [2015] 18 NWLR (Pt.
1490) 1 at 22 - 26.
58. Furthermore,
that the established principle of law that the express mentioned
of a thing is the
exclusion of others, captured in the latin
maxim “Expressio unius est exclusio alterius”, also
applies in this case. That the express mention of the following grounds: communities, ethnic group, place of origin,
sex, religion, circumstance of birth or political
opinion, imply the exclusion of other grounds not mentioned, citing The Hon. AG of Lagos State v. The Hon. AG of the Federation [2014] NSCQR Vol. 58 page 270 at 343.
59. That in the matter at hand, the express mention
of communities, ethnic groups, places
of origin, sex, religion,
circumstance of birth or political opinion
as grounds to constituting discrimination in section 42 of the Constitution means that any other ground not mentioned
therein is excluded. In this regard, the complaint of the claimant
being merely on the reintroduction of tenure policy
for Permanent Secretaries, the said policy
which applies to all Permanent Secretaries irrespective of their
communities, ethnic
groups, places of origin, sex,
religion or political opinion cannot be held to be discriminatory
as contemplated by the
Constitution. That it is inconceivable for the claimant
to contend that the tenure
policy is discriminatory against him, urging
the Court to so hold and dismiss
the claims of the claimant.
60. It is also the contention of the 1st defendant that the framers of section 42 of the Constitution
were intentional to restrict the items in section 42(1) of the Constitution to the ones expressly mentioned therein. That this intention
is manifest in the use of the word ‘or’ immediately before
the last item. For avoidance of doubt, section 42(l)
of the Constitution mentioned community, ethnic group,
place of origin,
sex, religion or political
opinion and nothing
more as grounds
which a citizen of Nigeria
may be discriminated upon and prohibit
discrimination on such grounds. It is the 1st defendant’s submission that the use of the word ‘or’before political opinion
in section 42(1) of the Constitution indicates the clear intention
that anything outside the grounds
listed
therein cannot be accommodated as grounds of discrimination
as contemplated by the section. That the ground of political
opinion mentioned after
the other grounds is the only
alternative beside the ones first mentioned or listed.
61. Furthermore, that the claimant
had relied heavily
on Lafia LG v. The Executive Governor,
Nasarawa State & 5 ors [2012] 17 NWLR (Pt. 1328) 94 to argue that the reintroduction of the tenure
policy as contained in Section 9 Rule 020909 of the PSR 2021 Edition amounts to breach
of the claimant’s right from discrimination. But ti the 1st defendant, Lafia LG suffers from an
incurable irrelevancy and is not applicable to the facts and circumstance of this case. That the
claimant, paragraph 3.9 of the his written address, explained
the genesis of the decision. In the
words
of the claimant, the dispute in the matter
arose over a policy by the Nasarawa State Government that infringed on the constitutional rights relating
to DISCRIMINATION
ON ETHNICITY AND PLACE OF ORIGIN SYNDROME. That the policy
required all unified Local
Government staff serving in Local Government Councils other than their Councils of
origin to relocate to their Local Government Councils of origin while staff who were not of Nasarawa State origin
to remain where they were working. That the brief background of the cause of action as revealed
by the claimant in paragraph 3.9 of his written
address no doubt exposed the fact that the decision is premised on discrimination
on the ground of ethnicity
and place of origin.
62. That it is interesting to know that as opposed to the cause of action in Lafia LG, the crux of
the claimant’s complaint
or cause of action
herein relates to the reintroduction of the tenure
policy for Permanent Secretaries in the Public Service of the Federation irrespective of their communities, ethnic
groups, places of origin, sex, religion
or political opinion.
That the claimant’s
complaint in the instant suit has nothing to do
with his community, ethnic group, place
of origin, sex, religion,
circumstance of birth or political opinion.
That the reintroduction of tenure policy
for Permanent Secretaries as provided
under Section 9 Rule 020909 of the PSR 2021 Edition,
which formed the basis of the claimant’s complaint, applies to all persons, irrespective of their
communities, ethnic
groups, place of origin,
sex, religion or political opinion. Consequently, that Lafia LG is of no use to the case of the claimant,
urging the Court to so
hold and dismiss the claims of the
claimant.
63. The 1st defendant
continued that the claimant is not the first Permanent Secretary who will be
affected by introduction of tenure policy in the Public Service of the Federation.
That as deposed to in paragraph 4(xx) of the 1st defendant’s counter-affidavit,
the introduction of the tenure policy for the first time under the 2008 Edition
of the PSR saw several Directors and Permanent Secretaries who had spent 8 years or more leaving
service. Also as deposed to in
paragraphs 4(xviii), (xx), (xxi), (xxii) and (xxiii) of same counter-affidavit, the claimant who said that he was appointed/promoted as a Director in 2013 and was appointed as a Permanent
Secretary in 2015 is only contesting the implementation of the 2021 Edition of PSR because he
wanted to benefit from the suspension of the tenure policy. Flowing from this, it is the 1st
defendant’s submission that Section 9 Rule 020909 of the PSR 2021 being a law validly made,
and imposes restriction on the tenure of all persons appointed
as Permanent Secretaries, falls within
the exception created
under section 42(3)
of the Constitution. In this regard, that the
claimant cannot be heard complaining that his right to freedom from discrimination
has been breached by Section 9 Rule 020909
of the PSR 2021 Edition, urging the Court to so hold and dismiss the claimant’s claim.
64. Furthermore,
that a closer look at paragraphs 18, 19, 20 and 21 of the affidavit
in support of the claimant’s originating summons will show that the claimant
averred that the reintroduction of
the suspended tenure policy
for Permanent Secretaries is discriminatory
against the claimant because several Permanent Secretaries before
the claimant served in the Federal Civil Service
until they attained the retirement age of 60 years or 35 years of pensionable service. To the 1st
defendant, this position of the claimant is misconceived. This is because the PSR 2021 is a law regulating the conditions of service of the claimant. That a law validly in operation has the
ultimate effect of changing
prior norms and circumstances in compliance/obedience with the
provisions of the law. That the claimant having
accepted appointment in the Federal Civil Service is bound by the provisions of the Public Service Rules 2021. That the claimant cannot decide to comply with only provisions that favour him and disregard others that do not. And the claimant cannot because the new provision of Section 9 Rule 020909 of the PSR 2021 does not benefit him invoke the principle of discrimination.
65. The 1st defendant proceeded
to submit that the allegation of the claimant
in paragraph 19 of his supporting affidavit is false and as deposed to in paragraph xliii of the counter-affidavit in opposition to the claimant’s originating summons, the claimant
as a Permanent
Secretary will retire with his salaries intact and will be capable of fulfilling all his loan obligation if there is
any.
66. That Section 8 Rule 020810 of the PSR 2008, which is impari materia with Section 9 Rule 020909 of the PSR 2021 Edition, provides for compulsory retirement age for all grades in the service to be 60 years or 35 years of pensionable service whichever is earlier. That the said provision is a general
provision, while
Section 9 Rule 020909
of the PSR 2021 Edition,
which provides for compulsory retirement of Permanent
Secretaries having held office for a term of
four (4) years and renewed for a further term of four (4) years, subject to satisfactory performance, is a specific provision limiting
the application of the general provision, citing Ardo
v.
Nyako & ors [2014] LPELR-22878(SC), which, relying
on Schroder v. Major [1989] 2 NWLR (Pt. 101) 1 at 13, held that the law takes the course which does not permit a general provision to derogate from a special provision.
67. The 1st defendant
continued that the claimant cannot say that because he is affected
by the specific provision, the said provision is discriminatory against him. In other words, the fact that
other Permanent Secretaries benefited from the compulsory retirement age of 60 years or 35
years
of pensionable service, whichever is earlier, prior to the reintroduction of the tenure policy of 4 years and a further
term of 4 years for Permanent Secretaries, the new law cannot be said to
be discriminatory against the claimant
in favour of the earlier
Permanent Secretaries that benefited in the absence of the tenure policy. This is more so that there are several ways of leaving the public service, like failure of promotion exams for three consecutive times, being found wanting of general inefficiency or dismissal.
68. That the claimant had argued that the reintroduction of the tenure policy was made against
him while disregarding other
Permanent Secretaries and some selected Directors in breach of
section 42 of the Constitution. To the 1st defendant, this position of the claimant
is misleading and misconceived given that Section 9 Rule 020909 of the PSR 2021 applies to all Directors and
Permanent Secretaries and not only the claimant and selected few as argued by the claimant, urging the Court to attach no value to the claims of the claimant and dismiss same for lacking in merit.
69. Furthermore, the claimant had relied on Olusa v. NICO & ors [2022] LPELR-57459(CA) to argue that the reintroduction of tenure policy for Permanent Secretaries in Section 9 Rule 020909 of
the PSR 2021 is retroactive against the claimant, hence unconstitutional.
To the 1st defendant, this position of the claimant is misconceived
as the decision in Olusa v. NICO & ors (supra)
relied upon by the claimant does not support
his case,
rather the said decision adds
strength to the position of the 1st defendant. This is because a careful examination of the decision reveals that
the claimants in that decision retired on 2/2/2016 shortly before
the suspension of the tenure policy which came into effect on 20/06/2016. Consequently, the court held that the claimants having retired before the circular letter suspending the tenure policy, the letter cannot take effect retrospectively to allow the claimants who have retired
to benefit therein.
That in relating this decision with the facts of the instant case, it will be realized
that the claimant
was in service as a Permanent Secretary in the Civil Service of the Federation when Section 9 Rule 020909 of the PSR 2021 came into effect.
The claimant cannot in this regard
hold the view that the Rule is being
applied retroactively against him, urging the Court to so hold and dismiss the claims of the claimant.
70. The claimant had also relied on Comptroller-General of Customs v. Comptroller Abdullahi B. Gusau [2017] 13 NWLR (Pt. 1598) 353 at 385 to state that Section 9 Rule 020909 of the PSR 2021 is contrary to the object and purpose of the PSR. To the 1st defendant, this position of the claimant is misconceived as the decision in Comptroller-General of Customs v. Comptroller
Abdullahi B. Gusau (supra) is not applicable to the facts and circumstance of the instant case.
This
is because the claimants in Comptroller-General of Customs v. Comptroller Abdullahi
B. Gusau (supra) were made to compulsorily retire from the service of the Nigerian Customs on the
basis of Policy Guidelines on Custom Service in breach of the express provisions of the PSR. That the claimants in challenging their premature retirement
on the basis of the Guidelines, the apex
Court affirmed the superiority of the PSR over the Policy Guidelines on Custom Service which
appears to be in express breach of the object
and purpose of the PSR. In the matter at
hand, it is the PSR itself that the claimant is challenging on the ground that a circular which was
issued
suspending the operation
of a provision of the 2008 Edition of the PSR is still alive to
affect the operation of a similar provision under the 2021 Edition of the PSR.
71. That in relating
the above with the facts of the instant case, it will be realized that the subject
matter of the instant suit relates to the reintroduction of the tenure
policy of Directors and Permanently Secretaries in Section
9 Rule 020909 of the PSR 2021. That the tenure policy is
part of the PSR, it is not contained in a separate guideline
or another instrument as to state that the said instrument is inconsistent with the object of the PSR. That Section 9 Rule 020909 of the
PSR 2021 is only a specific provision that limits the application of Section 9 Rule 020908 of the same
PSR which is a
general application, urging the
Court to so hold and dismiss the entire claim
of the claimant for lacking in merit.
72. In conclusion, submitted that the claimants case does not have any merit,
and he has not established
any of his claims. Accordingly, the case
should be dismissed in its entirety.
THE SUBMISSIONS OF THE 2ND DEFENDANT
73. The 2nd defendant
also started off with a statement of facts. To the 2nd defendant, the claimant claims that he was appointed
in 2013 as a Director in the Federal Civil Service of the Federation and was later appointed
as a Permanent
Secretary on 10 November
2015. That the claimant claimed
that the former President Muhammadu Buhari through the office of the 1st defendant issued a circular with Reference No. HCSF/428/S.1/139 dated 20 July 2016 to
suspend the tenure system of Rule 020810(vi)(b) of the PSR 2008 which states that a Permanent Secretary shall hold office for a term of four years and renewable
for a further term of four years,
subject to satisfactory performance and no more. Also that the claimant claims to believe that the
said
suspension of Rule 020810(iv)(b) of the PSR 2008 still subsists and that the implementation of the approved Revised Public Service Rules 2021,
which was approved by the Federal Executive Council under the leadership of the same former President Muhammadu
Buhari, particularly, its Rule 020909
by the defendants is discriminatory against him. As such, the
claimant is urging this Court to restrain the defendants from the implementation of the PSR 2021 which
came into force on 27 July 2023 particularly as it concerns the tenure policy provided in
Rule 020909 of the PSR 2021.
74. The 2nd defendant then reproduced the questions posed by the claimant, stating that he will respond to the said questions, and then formulated a sole issue for determination as follows: whether the claimant is entitled to the reliefs sought
against the defendants in this suit.
75. In response to question (1) posed by the claimant, the 2nd defendant
submitted that the suspension of the tenure policy in the Federal Civil Service is no longer suspended and that the policy has been re-activated by the approval
of the statutorily Revised Public Service Rules 2021 on
the 27 September 2021 by the Federal Executive Council under the leadership of the former
President Muhammadu
Buhari, who issued the circular dated 20 July 2016 with Reference
No: HCSF/428/S.1/139 through the office of the 1st
defendant in this suit.
76. The 2nd defendant then brought to the fore,
the definition of the operative word “suspension”. To the 2nd defendant, suspension means “a temporary in-operation of a state of
affairs which terminates over a period of time by re-activation of the state of affairs previously
in place”. That according to
the Black’s Law Dictionary, 2nd Edition, suspension
means:
A temporary stop of a right, of a law, and the like… Suspension of a right in an estate is a
temporary or partial withholding of it from use of exercise. It differs from extinguishment because a suspended right susceptible of being revived, which is not the case where the
right was extinguished…
77. That the Blacks Law Dictionary,
6th Edition went further to define suspension
to means:
To interrupt; to cause to cease for a time; to stay, delay, or hinder;
to discontinue temporarily, but with an expectation or purpose of resumption…. See Insurance CO. V. Aiken,
82 Va. 428; Stack V. O. Hara, 98Pa. 232; Iteeside V.U.S…8 W all 42, 10L. Ed.
318…See SUSPENSION.
78. To the 2nd defendant, these definitions clearly confirm
that the suspension of the Rule 020810(b) of PSR 2008 bordering on the tenure policy
of 4 years for a Permanent Secretary which is renewable for a further
term of 4 years, subject to satisfactory performance, and no
more, before compulsory retirement was clearly a temporary
or partial operation
of the said Rule which
can be reactivated and was clearly
reactivated by the approval of the Federal Executive Council under the leadership of the former President Muhammadu Buhari (the same Government
that issued the circular
dated 20 July 2016 with Reference No. HCSF/428/S.1/139 through the office of the 1st defendant) on 27 September 2021. It is thus the position of the 2nd defendant that the said circular dated 20 July 2016 with Reference No. HCSF/428/S.1/139 through
the office of the 1st defendant no longer subsists as the circular
with Reference Number: HCSF/ SPSO/268/T3/2/37 dated 27 July 2023 by the office of the 1st defendant has revived
the then Rule 020810(b)
of PSR 2008 now Rule 020909 of PSR 2021, which came into effect on 27 July 2023.
79. To the 2nd defendant, it is
important to stress that a policy
is a
set of
rules or guidelines put
in place by a government and other organizations to address a particular
issue or problem. That the tenure policy by the Federal Government is to solve the issue of career stagnation within
the service which
affected the entire career
progression in the service. It became expedient to re-introduce the tenure policy
for the benefit of all officers within the Public Service of the Federation. That the claimant
brought this suit in bad faith having regard that the claimant benefitted from the tenure policy under the PSR 2008 before it was suspended in 2016 but now
instituted this suit to challenge the re-introduction of the tenure policy. That the claimant never at any
time challenged the PSR 2008, which
guided his employment in 2013, when he was
appointed into the civil service.
80. The 2nd defendant
went on that the claimant,
as a public servant, is expected to keep himself
abreast of the provisions of the PSR, and circulars are issued from time to time to project the policy of Government of the day as provided in paragraph 3 of the preamble of the PSR 2008 and 2021 respectively. That
the claimant upon entry into service agreed and accepted to be
bound by the PSR 2008 and all laws or guidelines governing the public service, which incorporate the conditions of all public servants in the Public Service of the Federation. That the claimant cannot choose the circulars of PSR he wants to be bound by. He cannot approbate and reprobate as he
has been stopped by his letter of acceptance to be bound by all guidelines governing the public service. That the PSR is the document that sets out the guidelines or set of Rules guiding the conduct of public officers
in implementing the policies of the Federal
Government in Nigeria.
81. It is also the position of the 2nd defendant
that the circular dated 27 July 2023 overrides
the circular dated 20 July 2016. Consequently, that this Court should answer question (1) posed by
the claimant in favour of the defendants, disregarding
the claimant's argument
in support of
same, and dismiss the claimant’s
suit in its entirety as it lacks merit.
82. On question (2) posed by the claimant, it is the position of the 2nd defendant that the
implementation of the tenure policy by the Federal Civil Service of the Federation is neither discriminatory nor illegal to the extent
of violating the claimant’s right to freedom
from discrimination protected under the section 42 of the 1999 Constitution. That the right to freedom from discrimination enshrined under section 42 of the 1999 Constitution is not absolute. That
the right has exceptions in section 42(3) of the 1999 Constitution, which clearly states that the law
imposes restriction with respect to the appointment of any person to any office under the State,
19 of 39
the State being the Federal Republic of Nigeria. Consequently, that the claimant cannot
claim that the implementation of the provisions that guide his appointment which is the PSR 2008 and
2021 respectively has discriminated
against him based on the fact that the circular of 20 July 2016 suspended the tenure system
for a Permanent Secretary.
83. The 2nd defendant
then stressed that the implementation of the Revised Public Service Rules 2021 was based on approval and was communicated through
the circular of 27 July 2023, which clearly overrides the earlier suspension.
To
the 2nd defendant, the 2nd defendant’s position is not
farfetched having regard that
the implementation is pursuant to the Revised PSR 2021, which has
now revived the suspension
of the PSR
2008, particularly Rule 020810(iv)(b) of the PSR
2008.
84. The 2nd defendant
then referred to paragraphs 3 and 4 of the preamble to the Revised PSR 2021, which is impari materia with the preamble to the PSR 2008, which states
as follows;
3 Amendments
Further amendments to these Rules become necessary when new policies are formulated. The accompanying Manuals and Guidelines for its implementation, in instances, shall be made through Circulars, which will be issued from time to time.
4. Review of the Public Service
Rules (PSR)
The Public Service Rules shall be reviewed every five years to update the provisions of
the rules and to accommodate the provisions in Circulars issued between the period of
previous review and the PSR.
The Public Service Rules should be widely circulated to all categories of public servants.
Other Nigerian Citizens are also
encouraged to avail themselves with its
content…
85. And then referred Amaechina & anor v. Hon. Minister of Education & ors [2018]
LPELR-51051(CA), which relied on Maideribe v. FRN [2014] 5 NWLR 92, as to the legal status of
government circulars i.e. they contain general
statements of policy
and so are of great importance to the public giving many guidelines about government organization and exercise of
discretionary powers. And they are more than a mere administrative document
conveying new policy guidelines by the Federal Government.
To the 2nd defendant, going by all this, it is a
circular that was used to suspend the then Rule 020810(b) of the PSR 2008 and it is a circular
that was used to implement the approval of the Federal Executive Council to the Revised PSR
2021, which restored the tenure system
in its Rule 020909.
86. That the implementation of the Revised PSR 2021 is in compliance
with the rule of law and has not breached the claimant’s fundamental rights, particularly section 42 of the 1999
Constitution. That the claimant
was never targeted for discrimination
by the defendants or the Federal Government of Nigeria. The suspension of the tenure system was meant to subsist for only a period of time.
87. Furthermore,
that the PSR 2021 is applicable to all public
servants, whether in the Civil Service or Public Service and discriminates against no one. Therefore, the Court should discountenance the claimant’s allegation of discrimination
by the Federal Government against the claimant
and answer question (2) posed by the claimant in favour of the 2nd defendant; and then
dismiss this suit in its entirety
as it lacks merit and is against the rule of law and justice in the Federal Civil Service of the Federation.
88. In respect of question (3) posed by the claimant,
it is the position of the 2nd defendant that
Rule 020909 of the PSR 2021 was not made to be retroactive but was merely suspended by the circular dated 20 July 2016. Based on the definitions of suspension earlier given and the status of a circular, that the circular dated 27 July 2023 supersedes and revived the tenure policy as it once
again gave effect to Rule 020909 of the 2021 Rules. That to say that the said provision is made
retroactive is an aberration having regard that the rule was in place and now revived. That there
is no denial
that Rule 020908 of the 2021 Rules exists, Rule 020909 is a clear exception
as it relates to the tenure of a Permanent Secretary in the interest of the public
service and in furtherance of career progression within the Public Service of the Federation.
That the claimant’s
right was never infringed on by the implementation of Rule 020909
of PSR 2021 because the said
Rule was only “pended” and now back in
force.
89. The 2nd defendant then proceeded to state the importance and aim of a policy in Deaconess Mrs Felicia Ogundipe
v. Minister of the Federal Capital
Territory [2014] LPELR-22771(SC),
which is to address a particular issue or problem. Therefore,
the tenure policy being contended by the claimant aims to cure amongst others, a problem of career stagnation within
the public service which affects the whole and not peculiar
to the Claimant and also to check age cheats in the
Public Service, referring
to Limak Yatirim Enerji Uretim Isletme Hizmetierive Insaat AS,
Uludag African Power Limited and Lima Africa Power Limited v. Sahelian Energy and
Integrated Services Ltd [2021] LPELR-58182(CA) wherein
public policy was defined to mean, the
ideas which for the time being prevail in a community
as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is regarded as injurious
to the public interest.
90. The 2nd defendant
continued that it will amount to injustice to allow the claimant to hold the whole
Public Service of the Federation and its officers to ransom by the reason of this suit. That the
claimant’s suit is obviously injurious to the public service and against public interest which the tenure policy seeks to promote (the stagnation
of career progression affecting the entire public service). Accordingly, the 2nd defendant submitted that this Court should answer this
question in favour of the 2nd defendant and dismiss the claimant’s suit as it lacks merit as it is aimed at wasting the precious time of
the Court.
91. The 2nd defendant then addressed the sole issue he framed i.e. whether the claimant is entitled to the reliefs sought against the 2nd defendant
in this suit. In the first place, the 2nd
defendant asserted that he who asserts must prove. And so when a plaintiff brings an action for a wrong done through
an act or omission, it must be properly discernible and proved on the
balance of probability. That the claimant
brought this action against the 2nd defendant stating that the implementation of the tenure policy
in the Federal Civil Service according to Rule 020909 of PSR 2021,
which was suspended and now being implemented, has discriminated
against him by allegedly having a retrospective effect.
92. To the 2nd defendant, the claimant has not sufficiently proved how the implementation of the Revised PSR
2021 has infringed on his right of freedom from discrimination
and how it has amounted to breach of the rule of law and against the interest of the public to warrant the setting
aside
of same. That the 2nd defendant has been able to show that the Revised PSR 2021 was approved by the very same government that
earlier suspended the tenure policy system.
93. The 2nd defendant went on that the claimant
also failed to prove
that the defendants have targeted him because the same authority that temporarily stopped the tenure policy as it relates to a Permanent Secretary had approved
the revival of same with the approval of the Revised PSR
2021 where the implementation of Rule 020909
is contained. That the implementation of the Revised PSR appointment was done according to the dictates of the PSR 2021 as approved and came
into effect on the 27 July 2023. That the claimant has not shown the contrary to warrant the
grant of three declaratory reliefs and two orders for perpetual injunctions and an order to set
aside
the implementation of the PSR 2021 against the claimant.
That the claimant
also has not shown that upon entry into service he has not accepted to abide by the Rules and Regulations of
the PSR.
94. That contrary to the claims of the claimant, the defendants, especially
the 2nd defendant, have not been proved to have discriminated against him. That the claimant ought to have been
armed with the provisions of the Rules and the functions of the public service which majorly is to give effect to the policies of the Government
to achieve its goals. That the tenure policy has always been in the Federal Civil Service before
same was suspended and later revived in the
Revised PSR 2021. The said Rules were not made retrospective but resumed after it was
suspended. The policy was not outrightly removed
but was merely suspended till a particular time when it will be revived or revised. That a public servant ought to avail himself with the
content of the Rules. Therefore, the claimant has no excuse not to know that the suspension of
the tenure policy will one day be lifted and to maintain
that the said policy
remains suspended amounts to an aberration on the part of the claimant.
95. To the 2nd defendant, the burden of proving
whether the defendants discriminated
against him by implementing Rule 020909 of PSR 2021 solely rests on the claimant; and proof is on
preponderance of evidence
and balance of probability, citing section 131 of the Evidence Act 2011 and Owena Mass Transportation Co. Ltd v. Okonogbo [2018] LPELR-45221(CA).
The 2nd
defendant insisted that the claimant
filed to prove his claim of illegality against the already performed duty of the 1st defendant
and the Federal Government
of Nigeria, urging the Court to
dismiss
the claimant’s claim in the suit.
96. The 2nd defendant proceeded top address the condition upon which declaratory reliefs will be granted.
It is the submission of the 2nd defendant that in addition
to the claimant’s onus to
prove the alleged act or omission, they have sought declaratory reliefs upon which orders for perpetual injunctions are sought and an order to set aside the implementation of the tenure policy as contained
in Rule 020909 of PSR 2021. That it is an established principle
of law that reliefs which are declaratory must be based on certain conditions of law, citing CBN v. Jacob Oladele
Amao & 2 ors [2011] Vol. 201 LRCN, which, relying on Chukwumah
v. Shell Petroleum [1993] 4 NWLR (Pt. 289) 12, laid down the
conditions as including:
(a) A declaration will be granted even when the relief has been rendered
unnecessary by lapse of time for the action to be tried,
if at the time the action was brought,
it raised substantial issues of law.
(b) The claim to which the declaratory relief
relates must be substantial; that is, the plaintiff must be entitled to
the relief in the fullest meaning of
the word.
(c)A declaration will
only be granted where there is a
breach.
(d) The plaintiff must establish a right in relation to which the declaration can be made hence the court will not generally
decide hypothetical questions.
(e) The relief claimed must be something which would not be unlawful or
unconstitutional
or inequitable for the court to grant.
(f) The relief should also not be contrary
to the accepted principles upon which the court
exercises its jurisdiction.
97. To the 2nd defendant, there has been no breach of the provisions of the law as envisaged by this suit. That in the event that declaratory reliefs sought by the claimant
are granted to him, it will
set unlawful dangerous precedent to prevent and restrain the office of the 1st defendant
and the Federal Government of Nigeria, in the exercise of their statutory duties. That the position of
the courts have overtime
set out the principle
that “he who asserts must prove”,
referring to INEC v. Ituma
[2013] 11 NWLR (Pt. 1366) 494 where the Supreme Court stated that the claimant cannot rely on the weakness of the 2nd defendant’s case. He must prove sufficiently with material facts and evidence in order to back up his case. That all exhibits submitted by the claimant have not shown that the claimant
was discriminated against by the defendants and especially the 2nd defendant. They have in fact supported the case of the 2nd defendant upon the suspension of the tenure policy, and the reactivation of the Tenure Policy code the Revised PSR 2021.
98. That the court also stated in Hon. Chief Ogbuefi Ozomagbachi
v. Mr Dennis Amadi
& ors [2018] LPELR-4551(SC) that parties are bound by their pleadings and parties cannot embark on
fresh
arguments different
from their initial
arguments because the case must retain
its original intent. Therefore, to the 2nd defendant, the claimant has failed to establish through evidence
that this suit can be maintained as it lacks substance in their arguments and throughout their
processes.
99. The 2nd defendant also referred
to Mohammed v. Wammako [2018]
7 NWLR (Pt. 1619) 573 where
the Supreme Court held that: “The law is settled that in a claim for declaratory reliefs, the Plaintiff must prove his entitlement to such declaratory relief by cogent and credible
evidence”. That examining the facts as stated by the claimant in relation to Rule 020909 of PSR 2021, which was allegedly
implemented to discriminate against him, the claimant
has not disclosed with sufficient
evidence in any way that the rule of law has been tampered
with to warrant the basis for instituting this action.
That the facts of this case have not proved in any way that the declaratory reliefs, based upon the alleged
non-compliance with the above sections, should be
sought against the 2nd defendant.
100. The 2nd defendant went on that the 1st defendant’s statutory power to implement the Rules
was solely based on approval
of the Federal Executive
Council through a circular of the 1st
defendant. Ultimately, that the implementation this suit challenges cannot be said to be invalid. Therefore, declaratory reliefs (1), (2) and (3) sought by the claimant should be discountenanced in its entirety, urging
the Court to so hold. Furthermore,
that the claimant
has not established how he is entitled to the reliefs sought against the defendants, particularly when reliefs (4) and (5) for
perpetual injunctions punctured by the fact that declaratory reliefs sought by the claimant
cannot stand having
regard that the basis upon which the claimant claims has not been sufficiently
proved by the claimant, urging the
Court to so hold.
101. In conclusion, the 2nd defendant prayed
this Court to dismiss this suit in its entirety
as it lacks merit and substance.
THE CLAIMANT’S REPLY ON
POINTS
OF LAW
102. The claimant’s reply on points of law is as against
the submissions of the two
defendants.
103. On whether Exhibit 5, being a document,
speaks for itself and can be given meaning other than its ordinary meaning,
the claimant submitted that the defendants by their respective
submissions erroneously argued to suggest that Exhibit
5 connotes an alteration/amendment to the 2008 PSR in the sense that it deleted Rule 020810(iv)(a) & (b), which compulsorily retires a
Director after 8 years on the post. To the claimant,
Exhibit 5 did not offer an amendment to the
Public
Service Rules but clearly suspended the tenure policy. That the implication is that any
where the tenure policy is found in the Civil Service (including but not limited
to the PSR) it
automatically becomes ineffective.
103. The claimant went on that the operation of the suspension of the tenure policy via Exhibit 5 cannot
be said to amount
to an amendment of 2008 Public Service Rules as the content
of Exhibit 5 cannot be interpreted to mean deleting
Rule 020810(vi) (a)(b)
but to suspend its operation. Little wonder while the same provision was repeated
in Exhibit 6 without special
approval and deliberation of the Federal Executive Council.
That the law is settled that in the
interpretation of documents, words must be given its ordinary and clear meaning,
citing EDOSACA v. Osakue [2018] 16 NWLR (Pt. 1645) 199. And that parties cannot read into a
document what was not contained
therein.
104. On the application of the doctrine
of estoppel, the claimant
submitted that from the line of
reasoning of the learned counsel to the 1st defendant, it appears the defendants totally misplaced the
crux of the claimant’s case.
That the claimant in this suit is not challenging the validity of the PSR 2021 or the power of the defendants to amend same, but has challenged the implementation
24 of 39
of the tenure policy contained therein
in view of the subsisting suspension of the tenure policy by Mr President communicated via Exhibit 5. That it is not in contention that although the tenure policy was captured in the 2008 edition of the PSR, the defendants did not implement it in view of
the subsisting suspension of the policy by the President in 2016. That the defendants have
equally failed to implement the tenure policy
after the amendment of 2021 in view of the suspension of the policy. That one would only be left in a state of bewilderment as to why the
defendants suddenly commenced the implementation of the policy without first ensuring that the
suspension is
first lifted by
the defendant.
105. The claimant continued that “while we are in agreement with the 1st Defendant
as per the argument in paragraph 3.07 of the preliminary objection,
we submit that having regard to the fact
of this case, this principle is more applicable in support of the Claimants’ case than as a Defence to the Defendants”.
106. The claimant
went on that the rule of estoppel is based on equity and good conscience, the object being to ensure honesty and good faith thereby securing justice between the parties. That estoppel is explained as a rule where a person shall not be allowed to say one thing of one time
and the opposite of another time. It is, therefore, wrong and inequitable for the defendant
to, by his own directive, suspend the tenure policy and commence
implementation without first lifting
the suspension. Furthermore, that by the doctrine of estoppel the defendant cannot reintroduce
tenure policy into the Civil Service until the suspension is lifted. That the defendant, by his actions and words as contained in Exhibit 5, cannot recommence the implementation of the tenure policy in the Civil Service without
ensuring the vacation of the suspension directive by the President.
107. To the claimant, the issue here is straight forward.
The principle of estoppel raised by the
defendant is totally inapplicable as a defence. That this is “because the Defendant has not provided evidence to show that any of the claimants have benefited
from the implementation of the tenure policy,
by collecting their terminal benefit or benefited
in anyway whatsoever, as such,
the principle raised cannot be sufficient
as a Defence to the Defendant”. That it should be noted
that the application of the doctrine of estoppel to the fact of this case will mean that the defendants who have for over 8 years suspended the tenure policy
cannot suddenly commence the implementation without due process of law. That estoppel does not lie in mere imagination or assertion,
there must be facts proven
which will give rise to estoppel, citing Greenwood v. Martins Bank Ltd
[1933] AC 51 at 57, where Lord Tomlin
defined the essential factors as:
(1) A representation or conduct amounting to a representation intended
to induce a course of conduct
on the part of the person to whom the
representation is made.
(2) An act or omission resulting from the representation whether actual or by conduct by
the person to whom the representation is made.
(3) Detriment to such person
as a consequence of the act or omission.
108. That in AG Rivers State v. AG Akwa lbom State & anor [2011] LPELR-633(SC), the Supreme
Court again elucidated thus:
The doctrine of estoppel by conduct, though
a common law principle has been enacted
into our body of laws as Section 151 of the Evidence Act. It is in these terms: “When one
person
has, by his declaration, Act or omission, intentionally caused or permitted another
person
to believe a thing to be true and to act upon such belief (a thing to be true and to
act upon such belief), neither he nor his representative in interest shall be allowed in any
proceedings between himself and such person or such person's representative in interest, to deny the truth of that thing”.
109. It is the submission of the claimant that,
also called “estoppel in pais”, this common law
principle, which, as shown above,
has gained statutory acceptance in Nigeria, forbids a person from leading his opponent
from believing in and acting
upon a state of affairs, only for the former to turn around and disclaim his act or omission. That both the common and statutory law
do not permit this conduct. That is why section 151 of the Evidence Act has used the emphatic phrase “neither he nor his
representative in interest shall
be allowed…”
110. The claimant continued
that this principle was explained
better in Ude v. Osuji [1998] 10 SCNJ 75 at 22 thus:
The principle of estoppel by conduct is that one party has, by his words or conduct,
made to the other his words
or conduct, a promise or assurance which was intended to affect the
legal relation between them and to be acted upon accordingly, then once the other party had taken him at his word and acted
on it, then the one who gave the promise
or assurance cannot afterwards be allowed to revert to the previous. Legal relations as if no such promise or assurance has been made by him. He must accept their legal relation
as modified by himself even through it is
not supported in point of law by any consideration, but only by his word or conduct.
111. Further referred to are Buhari v. INEC [2009] All FWLR (Pt. 459) 419 at 517 and section
169 of the EvidenceAct 2011.
112. That it should also be
mentioned that an estoppel cannot be set up if its establishment results in
preventing the performance of constitutional and statutory duties. Similarly, it must fail if its establishment must result in illegality. That since the Federal Executive Council
cannot overrule Mr President by restoring the tenure policy, it is therefore illegal
to recommence the implementation of the tenure policy
without the directive of Mr President.
113. Interestingly, that Rule 020810(iv)(a) and (b) of the 2008 PSR was not expunged
from the Public Service Rules 2008 but same became
ineffective following the suspension of the tenure policy by the President. That “the claimants have structured their lives and affairs” based on the
directive of the defendant communicating the suspension of the tenure policy, as such, the
defendant cannot be allowed to state otherwise.
114. More so, that “as President re-affirming the suspension of the tenure policy having rejected
the recommendation contained
in exhibit HOS 2. It leaves room wonder why the Tenure Policy was never discussed by the Federal Executive
Council as an item to be amended/reviewed in the
Federal Executive Council meeting. See Exhibit HOS 4B and 4C”.
115. That “the Claimants have adduced
evidence and legal
argument to support their case”, urging the Court to hold this case meritorious. Thus, the need for parties to return to status quo
ante bellum by which "the
claimants are to enjoy
all benefits as bonafide staff of the 1st Defendant”. Furthermore, that the Court should
“grant all our reliefs in the interest of justice”.
COURT’S DECISION
116. I took time to consider the processes and submissions of the parties before the Court. Before delving
into the merit
of the case, I need to point out certain shortcomings in the written addresses of the parties, which should not be in
the first place.
117. Firstly, at page 24 of the 1st defendant’s written
address would be found paragraphs 6.14
and 6.15. These two paragraphs are repeated at page 25.
118. Secondly, the written address of the 2nd defendant
is not paged; and paragraphs 2.0, 2.1, 2.2
and 2.3 are repeated — all contrary
to Order 45 Rule 2(2) of the National
Industrial Court of
Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), which provides that “a Written Address shall not be more than thirty-five (35) pages, set out in paragraphs and numbered
serially…”
119. Thirdly, all through
the claimant’s reply on points of law, the claimant
talked as if there
were more than one claimant
in this suit. He kept referring to claimants in the plural. See, for instance, paragraphs 2.1, 2.2, 2.4, 2.7, 2.12 and 2.14 of the reply on points of law. And of the defendants, he spoke in some paragraphs as if there was only one defendant in the suit, whereas
they are two. See, for instance, paragraphs 2.3, 2.5, 2.6, 2.7 and 2.12 of the reply on points of
law.
120. Fourthly, in paragraph 2.4 of the reply on points of law, the claimant wrote thus: “While we are in agreement
with the 1st Defendant
as per the argument in paragraph 3.07 of the preliminary objection, we submit that having regard to the fact of this case, this principle is more applicable
in support of the Claimants’ case than as a Defence to the Defendants”. There is no preliminary
objection before the Court in this suit. So, I do not know which preliminary objection the claimant
is talking about here.
121. Lastly, In paragraph
1.2 of the reply on points of law, the claimant referred
to Exhibit 6 in
his submission. There
is no Exhibit 6 before the Court in this suit.
122. The 1st defendant had prayed this Court to discountenance
paragraphs 7, 8, 14 to 18 and 20 of the further
and better affidavit of the claimant as they are arguments and conclusions, and so
offend section 115 of the Evidence
Act 2011. By paragraph
7, the claimant averred that he knows as a fact that the Federal Executive Council
(FEC) cannot overrule the President. This is a conclusion.
123. In paragraph 8, the claimant
averred that Rule 020810(iv)(a) and (b) of PSR 2008 was suspended following the suspension of the tenure policy by the President. This
is an argument.
124. In paragraph
14, the claimant averred that given Exhibits HOS 4B and 4C, the tenure policy was never discussed
by the FEC as an item to be amended/reviewed. This
is an interpretation and a conclusion, meant
only for the Court.
125. In paragraph
15, the claimant averred that having seen the FEC extract, the tenure policy was not listed as one of the items to be amended or reviewed in the PSR 2008 review or
amendment. This is an interpretation and
a conclusion, meant only for the Court.
126. In paragraph 16, the claimant
averred that the tenure policy
was smuggled into the PSR
2021 after deliberation and approval
of the listed items for review by the FEC. This is an
interpretation and conclusion.
127. In paragraph
17, the claimant averred that the advent of PSR 2021 cannot and did not in any way invalidate the Presidential directive
on the suspension of the tenure policy. This is a conclusion
and an argument.
128. In paragraph 18, the claimant
averred that the directive of the President, suspending the
tenure policy, was never restricted to the PSR but to all policy relating
to tenures in the Federal
Civil Service. This is a conclusion
and an argument.
129. In paragraph 20, the claimant
averred that the re-introduction of the tenure policy was never
approved by the President or the FEC. This is
a conclusion.
130. Additionally, there is no evidence before the Court showing that the claimant is a member
of the
Executive Council of the Federation as to confer on him the factual knowledge
that enabled him to make the averments
he did as per paragraphs 7, 8, 14 to 18
and 20 of his further and better
affidavit. His averments in paragraphs 1 and 2 of his further and better affidavit as to his being
familiar with, and abreast of, the facts of this case as well as the facts which gave rise to the filing of the further
and better affidavit cannot confer on him the knowledge of what actually transpired at the meetings of
the Executive Council of the Federation.
131. In all, I agree with the 1st defendant that paragraphs 7, 8, 14 to 18 and 20 of the further and better
affidavit of the claimant
offend section 115 of the Evidence
Act 2011. The law is that such
offending paragraphs of an affidavit are to be expunged and discountenanced. See Ibzan Yila v. Hamma
Bilal & ors [2023]
LPELR-59778(CA) and Dr Stephen Adi Odey v. Chief John Alaga & ors [2021] LPELR-53408(SC). Accordingly, paragraphs 7, 8, 14, 15, 16, 17, 18 and 20 of the claimant’s further and better affidavit are hereby struct out. I so rule.
132. As I indicated
at the start of this judgment,
the claimant came to this Court by way of an
originating summons. He posed three questions for the determination of this Court, which three questions I also reproduced much earlier in this judgment. Now, the 1st defendant made an issue as to the manner
in which the claimant posed the three questions. To the 1st defendant, they depict the contradictory nature of the claimant’s case; and that the claimant’s case as presented in
the three questions for determination has no locus or direction.
133. A close look at especially questions (2) and (3) will show some assumptions on the part of
the claimant. In question (2), the claimant assumes, and hence concludes, that the tenure policy is discriminatory. And yet, the claimant
is asking this Court
to determine that very question. In
concluding that the tenure policy is discriminatory, what answer is the claimant expecting
from the Court? Does the claimant just want the Court to confirm his
conclusion?
134. In question (3), the claimant
assumes, and hence
concludes, that the PSR 2021 applies
retroactively and discriminatorily against him, and so is an unfair labour practice. My comments just made regarding
question (2) equally apply here. But more importantly, in bringing
the issue of unfair labour practice
in question (3), the claimant lost it as matters of unfair labour practices are best litigated vide complaints, not originating summons. As I will point out later, the claimant’s affidavit in support of the originating summons is particularly destitute in its averments to support the claims for discrimination under questions (2) and (3). This is the sense in
which the defendants argue that the claimant
did not prove his case to warrant the reliefs he
claims
being granted to him.
135. I have in previous decisions cautioned counsel against the use of originating summons as quick-fixes for litigating labour/employment disputes. His Lordship Ugo, JCA (delivering the leading judgment) in University of Jos & anor v. Victor Aro [2019] LPELR-46926(CA), relying on Olley v. Tunji [2013] 10 NWLR (Pt. 1362) 275 at 322, had generally cautioned
and held thus:
…formulation of questions for determination is central
to the validity of an originating
summons…and it is essential that the particular question of construction between the parties be clearly identified in the body of the summons…
………………….
…the originating summons without the questions on which to predicate the declarations
sought
is incompetent and by extension the lower Court had no jurisdiction in the matter. The originating summons was not commenced
by due process of law. The issue of
question or questions for determination in an originating summons is a question of substance…
136. A fortiori, if the absence of questions to be determined makes an originating summons
incurably defective, badly drafted questions would equally
affect the outcome of the case in an
originating summons proceedings. And so the originating summons procedure strictly restricts the claimant to just the questions posed and the affidavit
evidence presented. For instance, in Dr Dave Nwabor v. Oilflow
Services Limited unreported Suit No. NICN/LA/552/2015, the judgment
of which was delivered on 10 July 2017, this Court held thus at
paragraph 39:
The claimant is calling
on this Court to grant him N5 million
being 5 months’ salary
owed to him, interest on the said sum, general and aggravated damages and cost of this
action. In the main, however, the claimants’case is of salary owed to
him. The claimant is making this claim
after resigning from the employment of the defendant. For all his
claims, the claimant did not come by way of a complaint; he came by way of an originating summons. In choosing to come by way of an originating summons, the
claimant has delimited his case to just the question he posed and the reliefs he seeks. See
Sylvanus Eze v. University of Jos [2012] LPELR-20072(CA). This, of course, will be only within the limits of his affidavit evidence
since by law having to come by way of originating summons instead of a complaint
does not signify that the case is incompetent.
See Mahmud Bayo Alabidun
v. President of the Federal Republic of Nigeria & anor unreported Suit No. NICN/LA/74/2014, the judgment of which was delivered
on 30th January 2015. As enjoined
by NJC v. Hon. Justice Jubril Babajide
Aladejana [2014] LPELR-24134(CA), therefore, the resolution of the instant case (since it is an originating
proceedings) must be restricted to the issues raised in the originating summons. See also
Dr
Olusola Adeyelu v. Lagos University Teaching Hospital (LUTH) & 2 ors unreported Suit No. NICN/LA/94/2017, the judgment of which delivered
on 25th April 2017, where
the claimant chose to litigate his suspension via an originating summons instead of a complaint, and thereby delimited the scope of recovery.
137. It appears that counsel
are not ready to heed this advice.
138. From what I gathered,
the claimant’s case is that Exhibit 4 dated 20 July 2016, which
suspended the application of the tenure policy in the Federal Civil Service (despite that it was provided for in the Public Service
Rules 2008) was still applicable despite that Exhibit 5 dated 27 July 2023 directed “full compliance with all provisions of the Public Service Rules (PSR) 2021”. The PSR
2021, like the PSR 2008, retained the tenure policy.
139. The PSR 2008, in
providing for “compulsory retirement”, stated thus
in Rule 020810:
(i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years
of pensionable service whichever is earlier.
(ii) 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.
(iii) The provision of (i) and (ii) of this Rule is without
prejudice to prevailing requirements for Judicial Officers and Academic
Staff of Universities and other tertiary
institutions who retire at 70 and 65 years
respectively.
(iv) Provided the officer would not have attained the retirement
age of 60 years or spent 35 years of pensionable service, whichever is earlier:
(a) a Director shall compulsorily
retire upon serving eight years on
the post; and
(b) a Permanent Secretary shall hold office for a term of four years and renewable for a further term of four years, subject
to satisfactory performance and no more.
140. What should be noted from Rule 020810 of PSR 2008 is that the tenure policy was incorporated in the provision dealing
with “compulsory retirement” as Rule 020810(iv), which tenure policy was provided as a proviso to the provisions on compulsory retirement. It was the application of this tenure policy that was suspended for the Federal Civil Service vide Exhibit 4.
The applicability of this 2008 tenure
policy was affirmed by the Court
of Appeal in Mr Steve
Olusoji Bamidele Olusa
v. National Institute for Cultural Orientation & ors [2022]
LPELR-57459(CA), a case cited
and relied on by the claimant, when the Court held that the
suspension of the policy vide the instant Exhibit
4 cannot operate
retrospectively. See also
Ambassador D. C. B. Nwanna v. National Intelligence Agency & 2 ors unreported Suit No. NICN/ABJ/123/2011, the judgment of which was delivered on 16 December
2013, the very first case
where this Court considered, interpreted and applied the 2008
tenure policy.
141. Under the PSR 2021, Section 9 of the PSR 2021 deals with “Leaving the Service”.
Rule 020908 of the PSR 2021 then provides for mandatory retirement (note that the 2008 PSR uses
the phrase, “compulsory retirement”) in these words:
(i) The mandatory retirement age for all grades in the Service shall be 60 years or 35
years of pensionable service whichever is
earlier.
(ii) 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.
(iii) The provision of (i) and (ii) is without prejudice
to prevailing conditions of service
for Judicial Officers, Academic Staff of Universities and other Officers whose retirement age is at variance with (i) and (ii)
above.
142. Rule 020909 of the PSR 2021 proceeds to make a separate provision for the tenure policy in
these words:
A Director or its equivalent by whatever nomenclature it is described in MDAs shall compulsorily retire upon serving eight years on the post; and a Permanent Secretary shall hold
office for a term of four years and renewable for a further term of four years, subject to satisfactory performance and no more.
143. A comparison between
Rule 020810 of PSR 2008 and Rule 020909
of the PSR 2021 will
show
that under the PSR 2021, the tenure policy is no longer merely a proviso. It is a full fledged Rule, with a life of its own. That this is so, must be a deliberate act of the drafters. There are
other noticeable differences in choice and arrangement of words when Rule 020810 of the PSR
2008 is compared with Rules 020908 and 020909 of the PSR 2021. This too is deliberate. So when Exhibit
5 enjoined “full
compliance with all the provisions of the Public Service Rules
(PSR)
2021”, this must be read in its ordinary meaning i.e. that all the provisions of PSR 2021 including Rule 020909 must be complied with, with effect from 27 July 2023. Any other
interpretation cannot be in consonance
with the ordinary meaning of Exhibit 5. I so
hold.
144. The claimant had argued that the 1st defendant cannot overrule Mr President’s directive
given in the circular dated
20 July 2016 (Exhibit
4); and so the 1st defendant’s directive
reintroducing the tenure
policy via the circular of 27 July 2023 (Exhibit 5) is illegal and,
therefore, unimplementable. To the claimant, the 1st defendant remains subject to the directive
of his principal, Mr President, and so cannot take any decision capable of overriding or conflicting with the directive already
issued by the President. Here, I must say, the claimant assumes that the
1st defendant acted on his own, independent of Mr President in reintroducing the tenure policy in
2023.
145. The claimant
had also submitted
that the Federal Executive Council cannot overrule
Mr President by restoring the tenure
policy. As such, that it is illegal
to recommence the implementation of the tenure policy without the directive
of Mr President. The claimant gave no
authority to the Court for this proposition. I wonder what point the claimant
seeks to make here. Where an Executive
Council of the Federation
meets, with Mr President presiding, and a decision is taken as to a policy as enjoined by section 148(2)(a)
of the 1999 Constitution, would
that be a case of the Executive Council of the Federation
overruling Mr President? Even where Mr President did not preside over the meeting of the Executive
Council of the Federation, as where
the meeting is presided by the Vice President, would the Executive Council
of the Federation be said ti have overruled Mr President especially where he ratifies any policy adopted
at the meeting?
146. The PSR 2021 attached to Exhibit 5 boldly has it that it was “approved by the Federal Executive Council on 29th September, 2021”.
The Foreword to the PSR 2021 is endorsed as signed by “Muhammadu
Buhari, GCFR, President of the Federal Republic
of Nigeria, State
House,
Abuja”. The last two paragraphs of the Foreword read thus:
I urge all Pubic Servants to acquaint
themselves with these Rules and Regulations as well as other extant laws to enable them to become
Efficient, Productive, Incorruptible and Citizen-Centered Public
Servants.
Lastly, I commend the Head of the Civil Service of the Federation,
all Public Officers and other
stakeholders who had worked tirelessly to bring the 2021 Edition
of PSR into fruition.
147. With the above commendation and urging, where does the issue of overruling Mr President
come from? And how can the claimant
even think of it as to bring it up as an argument?
The argument of the claimant
in that regard is as bizarre
as it is wishful thinking. I reject it and so discountenance
it.
148. The claimant had relied heavily on Olusa v. NICO & ors [2022]
LPELR-57459(CA), a case
in which, according to him, the Court of Appeal per Adah, JCA (as he then was) acknowledged the proactive application of the tenure policy; for which the claimant, who is privileged to be in service after the suspension of the policy on 17 June 2016, qualified
to enjoy the said suspension of
the policy. The claimant
would further submit that retrospective reintroduction of the tenure policy is illegal and unenforceable. I note
that Olusa was quite emphatic when it held that “By all means, the circular suspending the operation
of the Tenure Policy can only be applicable to those who were still in service at the time of the suspension” and “It is a cardinal rule of our law that
no legislation shall be construed to have retrospective operation
unless such is expressly stated in
the law”. Is Rule 020909 of the PSR 2021 being applied
retrospectively in this case? The answer
is NO. Is the circular suspending the tenure policy a subsisting circular as to remain binding? This remains the question. The
claimant’s argument is that it remains binding.
149. The claimant
cited and relied
on Shitta-Bey v. AG, Federation &
anor [1998] LPELR-3055(SC), which held that there is the presumption that,
where there is no evidence to
the contrary, things are presumed to have been rightly and properly done. Everything points
to the fact that Mr President approved
the PSR 2021. Mr President is the Chairman the Executive
Council of the Federation that approved
the said PSR 2021. I quoted earlier from the Foreword
to the PSR 2021 signed by Mr President, where he urged all Public Servants to acquaint
themselves with the PSR. Exhibit HOS 4A dated 7 October 2021 of the 1st defendant shows that
the Memorandum to the Executive
Council of the Federation
which led to the approval
of the PSR 2021 was actually from Mr President. Exhibit HOS 4B is the actual
Memorandum
EC(2021)238 from Mr President; and it is initialed by Mr President as “P.M.B.” on 2 September 2021. Exhibit HOS 4C is the minutes of the meeting of the Executive Council of the Federation held on 29 September 2021 and chaired
by the Vice President where Memorandum
EC(2021)238 from Mr President praying for the adoption
of the PSR 2021, which was then considered and approved. In particular, the provisions as to “Appointment and Leaving the Service” under which would be found Rules 020908 and 020909 of the PSR 2021 were considered and approved.
All of this does not suggest any disapproval
by Mr President of the application of the tenure policy.
150. The argument of the claimant
that there has to be a specific lifting of the suspension of the tenure policy is unfounded as nothing
was placed before the Court to show that the tenure policy under the PSR 2021 will apply only when the suspension of the policy initially made was
specifically lifted. In any event, it may as well be logically
argued that if the suspension of the
tenure policy was still subsisting, why did Mr president not reverse the directive
retiring the claimant? I must stress that the directive to suspend the tenure policy
vide Exhibit 4 was
communicated by the 1st defendant. When the claimant
was appointed a Permanent Secretary
vide Exhibit 2 dated 12 November 2015, it was the 1st defendant who communicated same to the
claimant. In all this, the claimant did not question the authority of the 1st defendant
to make the communications. So when vide Exhibit
5 dated 27 July 2023, the 1st defendant instructed full
compliance with the PSR 2021, why is the claimant
now complaining and questioning the authority of the 1st defendant to issue such an instruction? I wonder.
151. In Exhibit 5, the 1st defendant wrote thus:
Following the approval
of the revised Public Service Rules (PSR) by the Federal Executive Council (FEC) on the 27th of September, 2021 and its subsequent unveiling during the Public Service Lecture in commemoration of the 2023 Civil Service
Week, the PSR has become operational with effect from 27th July,
2023.
2. You are, therefore, to ensure full compliance
with all provisions of the Public service
Rules (PSR) 2021.
3. Please, ensure strict
compliance with the contents of this circular.
152. The things to note from
Exhibit 5 and all I have said so far are:
(a) The PSR 2021 was approved by the Executive
Council of the Federation.
This is in consonance with section 148(2)(a) of the 1999 Constitution, which
provides that the President shall hold regular meetings with the Vice-President and all the Ministers of the
Government of the Federation
for the purposes of determining the general direction
of domestic and foreign
policies of the Government of the Federation. Mr President is the Chair of this body. He often chairs the meetings except where
he is
absent, in which event the Vice President would
chair as Exhibit HOS 4C shows. See generally section 148 of the 1999 Constitution.
(b) The PSR became
operational on 27 July 2023.
(c) All the provisions of the PSR 2021 were to be complied with; and the compliance
was to be strict (emphasis is the Court’s).
(d) So, when it was instructed that all the provisions
of the PSR 2021 were to
be complied with, did this suggest the operation
of any suspended provision?
The answer is NO. If the intention was that suspended provisions were to remain suspended, would the instruction
in Exhibit 5 not have stated so? I strongly
think so.
153. In paragraph
1.2 of the reply on points of law, the claimant argued that Exhibit 5 cannot be interpreted to mean deleting
Rule 020810(vi)(a) and (b) but to suspend its operation; and that
little wonder while the same provision was repeated
in Exhibit 6 without
special approval and
deliberation of the Federal Executive Council.
To start with,
as I indicated earlier, there is no Exhibit 6 before the Court in this suit. If the argument of the claimant is that there was no special
approval for the lifting of the suspension of the tenure policy, then that argument is unfounded and baseless as I indicated earlier.
154. On the whole, as far as question (1) posed by the claimant
is concerned, I am not convinced by the argument of the claimant that the tenure policy remains suspended. I must thus answer the said question (1) against the claimant,
and hold that the suspension of the tenure policy has been
done away with by the PSR 2021 as brought
into force by Exhibit 5. Accordingly, the tenure
policy is now in force
and so operational since 27 July 2023. All acts implementing the tenure policy since
27 July 2023 are accordingly valid. I so rule.
155. Questions (2) and (3) posed by the claimant are hinged on his claim for discrimination. The claimant argued that the tenure policy
as applied to him by the defendants was discriminatory
and so infringes his right under section 42 of the 1999 Constitution. In opposing this argument,
the 1st defendant argued that the claimant
cannot found his case in discrimination
given that he did not situate his case on any of the grounds enumerated in section 42 of the 1999 Constitution.
In other words, the grounds of discrimination
are closed and so no other ground,
not listed in section 42 of the 1999 Constitution, can found an action in discrimination as far as section 42 of the 1999 Constitution is concerned.
The 1st defendant relied on Uzoukwu v. Ezeonu II [1991] 6
NWLR (Pt. 200) 708 at 779 - 780. Specifically,
that the tenure policy is not one of the grounds
of discrimination listed in section 42 of the 1999 Constitution.
Is the 1st defendant right in this argument?
156. The answer lies in the manner section 42 of the 1999 Constitution is couched. The section
provides that:
(1) A citizen of Nigeria
of a particular community, ethnic group,
place of origin,
sex, religion or political
opinion shall not, by reason only that he is such a person -
(a) be subjected either expressly by, or in the practical
application of, any law in force
in Nigeria or any executive
or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria
of other communities,
ethnic groups, places of origin,
sex, religions or political opinions are not made subject;
or
(b) be accorded
either expressly by, or in the practical
application of, any law in force
in Nigeria or any such executive or administrative action, any privilege or
advantage that is not accorded to citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected
to any disability or deprivation merely
by reason of the circumstances
of his birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the
law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation
or member of the Nigeria Police Force or to an office in the service of a body corporate established directly
by any law in force in Nigeria.
157. In Adeyemo Ayodele Omoniyi & ors v. University of Lagos unreported Suit No. NICN/LA/ 426/2016, the ruling of which was delivered
on 29 March 2017,
available at https:// nicnadr.gov.ng/judgement/judgement.php?id=1382 as accessed on 22 March 2024, this Court
interpreted section 42(1) of the 1999
Constitution in these words:
[12] I now proceed to the merit of the preliminary objection.
The issue before this Court
is whether it has jurisdiction over this case. The claimants think
that this Court has the
jurisdiction. The defendant
thinks not giving two reasons: …the second that the claimants
did not framed (sic) their case within any of the prohibited grounds listed in section 42(1) of the 1999 Constitution given the manner in which relief (1) is couched.
I start off with
this second reason. The defendant relied on section 42(1) of the 1999 Constitution, which
provides that “a citizen
of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion
shall not, by reason only that he is such a person”
be discriminated or subjected to disabilities or restrictions on those grounds. This
provision does not state that the categories of the grounds of discrimination are closed.
Even in using the word “only”
in section 42(1), it must be appreciated the context in which it is used. The provision that “a citizen of
Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person” means that citizens without more cannot be discriminated
on just the ground that he/she is of a particular community, ethnic
group, place of origin, sex,
religion or political opinion. The statement cannot be read to mean that these grounds of
discrimination are the only grounds of discrimination. In other words, it cannot be read to mean
that discrimination on grounds other than the listed out would thereby be valid and legal
(and so not remediable
in law) simply because the discrimination was not done on any of the listed constitutional
grounds. To uphold the argument of the defendant
would mean, for instance, that albinos discriminated against as albinos or a worker
with HIV/ AIDS discriminated against as such would
have no remedy
in law. May be, if the defendant’s argument
is taken within
the strict confines of constitutional law (even at this, I have my doubts as I have shown), as was the case in Festus Odafe & ors v. Attorney
General, Federation & ors unreported Suit No. FHC/PH/CS/680/2003,
where the Federal High Court held that there was no breach of the constitutional
right against discrimination for
a prisoner living with HIV/AIDS because the Constitution did not expressly state HIV/AIDS as a prohibited ground of discrimination, that conclusion may be reached,
erroneously I dare say. The point is that even if an act, to go by the defendant’s argument,
is outside of the constitutionally listed grounds for discrimination, there is nothing that says that it cannot be discriminatory
on grounds recognized as such by other laws, other
than the Constitution. Discrimination at the workplace
encompasses actions of an
employer way outside of the constitutionally listed grounds in section 42. Is
the defendant saying that this Court, with its jurisdiction under section 254C(1)
of the 1999 Constitution to apply international best practices, and Treaties, Conventions, Recommendations and Protocols pertaining to labour law and ratified
by Nigeria, should
turn a blind eye to such discriminatory practices simply because they are not listed in
section 42 of the Constitution?
I do not think the defendant gave this issue a second thought
before advancing
its argument. I must accordingly discountenance the defendant’s argument on that score…
158. As can be seen, the word, “only” used in section 42(1) of the 1999 Constitution does not
delimit the grounds of discrimination
listed in the said section. I do not accordingly agree with
the 1st defendant that the grounds of discrimination are closed in section 42 of the 1999
Constitution. For emphasis, I wish to reiterate what I said in Adeyemo Ayodele Omoniyi & ors v.
University of Lagos:
The provision that “a citizen of Nigeria of a particular
community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that
he is such a person”
means that citizens without more cannot be discriminated on just the ground that he/she is of a particular community, ethnic group, place of origin,
sex, religion or political
opinion. The statement cannot be read to mean that these grounds of discrimination are the only grounds of discrimination. In other words, it cannot be read to mean that discrimination on grounds other
than the listed out would thereby
be valid and legal (and so not remediable in law) simply because the discrimination was not done on any of the listed constitutional grounds.
159. I now turn to the question whether
questions (2) and (3) posed by the claimant
can be answered in his favour. Paragraph 20 of the claimant’s affidavit in support of the originating
summons
states
thus:
I also know that the reintroduction of the suspended tenure policy
is discriminatory against me as other permanent
secretaries before us, served in the federal
civil service until they attain
the retirement age of 60 years or 35
years of pensionable service.
160. This is
the only piece of evidence that supports the claimant’s claim on discrimination as per questions (2) and (3) posed by the claimant,
and reliefs (2) and (5) he claimed. Who in fact are
the Permanent Secretaries before the claimant that the claimant
mentions for comparison? His
affidavit is silent on this.
161. In paragraphs 3.5 and 3.6 of the claimant’s written address in support of the originating
summons,
the claimant argued thus:
3.5. My lord, by the affidavit in support of the Originating Summons, the Claimant has
shown that the Tenure Policy did not apply to several Directors and permanent secretaries before him and other permanent secretary that are still serving in the Federal Civil Service. It is also interesting to observe that the defendant
has failed to issue any guide
for the implementation of the policy,
thus, the malicious implementation.
3.6. The 1st defendant having refused to implement the tenure policy
on the other permanent Secretaries and directors in the health sector cannot single out the Claimant
for the purpose of implementation of the policy in total violation of section 42(1) of the Constitution…
162. No where in the supporting
affidavit did the claimant
aver to anything about health sector Directors and Permanent
Secretaries. So, the submissions in that regard are simply counsel giving evidence in a written address. The law is quite clear that no matter
how brilliant or
attractive a counsel’s address may be, it is not a substitute for credible
or solid pleadings or evidence.
See Nig. Arab Bank Ltd v. Femi Kane Ltd [1995] 4 NWLR (Pt. 387) 100,
Chukwujekwu v. Olalere [1992] 2 NWLR (Pt. 221) 86, Ajayi v. Total Nigeria Plc [2013]
LPELR-20898(SC), Adam v. Shaibu & ors [2016] LPELR-40179(CA) and Okwejiminor v. Gbakeji & anor [2008] LPELR-2537(SC). Citing several anti discrimination
provisions of
international instruments and concluding that this Court is bound by them as the claimant
did in paragraph 3.4 of his written address will not help the claimant
here once he is deficient in bringing to the fore the relevant facts needed
to apply the law to.
163. I need to stress that an action hinged on discrimination is one that conjures up a comparison
in the application of rights and privileges. A claimant cannot claim that he has been discriminated
against unless by concrete and credible evidence
he shows that identified others were treated more
fairly and better than he was or is being treated. Without this comparative evidence, the claim for discrimination cannot
stand. A blanket
statement that health sector Directors and
Permanent Secretaries were treated differently is not concrete enough evidence for this purpose.
164. The claimant’s reliance on Lafia LG v. Gov, Nasarawa State [2012]
17 NWLR (Pt. 1328) 94 also reported
as Lafia Local Government v. The Executive Government Nasarawa State & ors
[2012] LPELR-20602(SC) is of little assistance in this regard. In Lafia LG the policy statement held to be discriminatory was general and applied as such. The policy in issue required
all unified local government staff serving in local government councils other than their councils of
origin to relocate to their local government councils of origin, while staff who were not of Nasarawa State
origin to remain
where they were working.
This is a policy directive that discriminates on face value. In the instant case, however, there is no such discrimination
as far as
Exhibit 5 is concerned. Exhibit 5 did not direct compliance with the PSR by only some public servants and not others. It called for strict and full compliance. No exceptions were indicated.
In fact, the general application of the tenure
policy to all Permanent
Secretaries is even
acknowledged by the claimant in paragraph 15 of his affidavit in support. In the said paragraph 15, the claimant
averted that “the head of service has now in the revised Public Service Rules amended the retirement age to make it mandatory for permanent secretary (including the Claimant) to retire after serving 4 year notwithstanding that fact that claimant have not attained 60 years of age or serve for 35
years…”
165. When in paragraph 20 of the supporting
affidavit the claimant averred
that the reintroduction of the suspended tenure policy is discriminatory
against him simply because other Permanent Secretaries before him had served in the Federal Civil Service until they attained the retirement age of 60 years or 35 years of pensionable service, the claimant seems to have easily
forgotten that this was because the suspension of the tenure policy was in force then. Once the
suspension was overtaken by the 2021 PSR, the rule was not applied on only the claimant.
The rule applies to all Directors and Permanent Secretaries, as the case may be. This cannot thus be a ground for a discrimination claim.
166. Additionally, when the claimant submitted that the tenure policy was not applied to health sector Directors and Permanent Secretaries, it behoves on him to give by way of concrete and credible evidence who these specific health sector Directors and Permanent Secretaries are for this Court to know and establish that in truth the claimant was treated discriminatorily. A blanket submission, as the claimant’s counsel did, is totally unhelpful
to the claimant’s case of
discrimination. I dare say that it is also misleading, a deliberate attempt
at that to mislead the
Court. I so rule.
167. There is one other issue the claimant did not allude
his mind to even though the 2nd
defendant did. And this relates to section 42(3) of the 1999 Constitution,
which, to the 2nd
defendant, creates an exception
to section 42(1) and (2) of the Constitution. By section 42(3),
restrictions may be imposed regarding the appointment of any person to an office under the State. And because section 11(1)(b)
of the Interpretation Act states that the power
to appoint includes the power to remove or suspend, a fortiori, restrictions as to appointments would include issues of removal and suspension. And these, by section 42(3) of the 1999 Constitution,
cannot amount to discrimination. The claimant did not factor this in his
submissions.
168. On the whole, aside from the absence of facts upon which a claim in discrimination
can be founded, I am not even satisfied that the claimant has shown to this Court that the tenure policy
discriminated against him. The tenure
policy is of general
application to all Directors (by
whatever name called) and Permanent Secretaries in the Public Service. I do not see how this is discriminatory
of the claimant. I so hold.
169. The claimant’s case is accordingly without
any merit whatsoever. All the questions he posed are
answered against him; and the reliefs he claims all fail. The case of the claimant
hereby fails and so is dismissed in its totality.
170. Judgment is
entered accordingly. I make no order as to cost.
…………..……………………………………
Hon. Justice B. B. Kanyip, PhD, OFR
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