Alhaji Ibrahim Abdullahi V. The Military Administrator & Ors (2009)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, J.S.C.
The appellant was born in 1943. He was appointed as a painter and decorator in the former Ministry of Works and Water Resources in the then Northern Region and later known as the Northern States of Nigeria. The appointment took effect from 5th December, 1962. The appellant was later transferred to the North Central State and finally to Kaduna State.
Appellant, who rose to the rank of Chief Works Superintendent, Ministry of Water Resources and Rural Development, Kaduna State was retired from the service of Civil Service by virtue of implementation Guidelines on the Civil Service Reforms of 1988 and Establishments Circular E BD 111996 No. S/PEN/24/1/320 of 13th January, 1996 made pursuant to Civil Service (Re-organization) Decree 1988.
The appellants, aggrieved by the action of the respondents, sued by way of originating summons on 16th October, 1998 after entering into several correspondences with the respondents. The reaction of the respondents was that of a rebuff. He asked for the following reliefs:
“(a)A Declaration that the purported retirement of the plaintiff by the 1st to 5th defendants is contrary to Decree 102 of 1979 and is illegal, null and void.
(b) A Declaration that the stoppage of the plaintiffs salary and emoluments with effect from March 31st 1998 is illegal, null and void.
(c) A Declaration that the breaking into the plaintiff’s office and the removal of his items there from by the 6th defendant on April 29th, 1998 is illegal.
(d) A Declaration that the plaintiff is entitled to consideration for and promotion to Grade level 16 by the 1st to 5th defendants.
IN THE ALTERNATIVE: That the emoluments and benefits accruing to Grade Level 16 Officer enure to the plaintiff and same be made and paid personally to him.
(e) An order of immediate reinstatement of the plaintiff to his office by the defendants.
(f) An order that all emoluments of the plaintiff withheld since March 31st 1998 till his reinstatement in office be paid to him.
(g)An order that the 4th defendant consider and effect the overdue promotion of the plaintiff to a Grade Level 16 officer with its attendant emoluments or make payment of same personally to him
(h) Damages in the sum of N50,000.00 against the 6th defendant for breaking into the plaintiff’s office.
(i) The return of the items removed from the plaintiff’s office by the 6th defendant or damages in the sum of N10,000.00 being cost of replacing same.
j) For the determination of the following questions:
(i) Whether Decree 102 of 1979 makes it mandatory for civil servants as the plaintiff to retire from service after serving for 35 years only
(ii) Whether Decree 102 of 1979 precludes the plaintiff from remaining in service after serving for 35 years and before attaining 60 years of age
(iii) Whether the plaintiff can be retired from service on the basis of Implementation Guidelines, on the Civil Service Reforms of 1988, which are pursuant to and founded upon the Civil Service (Re-organisation) Decree 1988, which was repealed on 1st April, 1995
(iv) Whether the defendants can stop the payment of the plaintiff’s salary and emoluments and break into his office without lawful orders and without any authority whatsoever
(v) Whether the plaintiff was entitled to promotion in 1991 based on the Implementation Guidelines on the Civil Service Reforms and thereafter entitled to promotion in 1998 on the 3-year rule in operation before the said Guidelines came into effect”
The learned trial Judge dismissed the suit of the appellant. His appeal to the Court of Appeal was also dismissed. He has come to this court.
Briefs were filed and duly exchanged. Appellant also filed a reply brief. The appellant formulated the following issues for determination:
“1. Whether the learned lower court Justice was right when he held that: “The Civil Service Commission’s letter communicating Appellant’s Retirement to him, exhibit 1A 16 did not state that appellant was retired on the provisions of Pension Act Cap. 346 rather it categorically stated that the Retirement was in accordance with the provision of Implementation Guidelines, on the Civil Service Reform of 1988 and Establishments Circular ED.1/1996, NO.S/PEN.24/1/320 of 14th January, 1996.”
- Whether the learned Justice was right when he held that: “An action taken or an operation carried out under enactment subsists or is unaffected after the legislation is repealed by dint of Section 6 (1) (b) of the Interpretation Act, Cap 192 of the Laws of the Federation of Nigeria, 1990. It survives in spite of the repeal of the Law under which the action was taken. Section 6 (1) (b) of the said Act Cap. 192 reads as follows:
6(1) The repeal of an enactment shall not:-
(a) xxxxxxxxxxxxxxxxxxxxxxxxxx
(b) Affect the previous operation of the enactment or anything duly done or suffered under the enactment.”
The respondents adopted the issues formulated by the appellant. Appellant, appearing in person, submitted on issue NO.1 that the Court of Appeal misunderstood the law of retirement. He submitted that the only law under which any public officer, including him can be retired is the Pensions Act, Cap 346 and not the provisions of Implementation of the Civil Service Reform of 1988 and Establishments Circular ED.1/1996, NO.S/PEN.24/1/320 of 14th January 1991 as wrongly held by the Court of Appeal. He argued that apart from the fact that the Implementation Guidelines on the Civil Service Reforms of 1988 (Re-organisation) Act, Cap.55, Laws of the Federation of Nigeria, 1990 contained no provision of retirement of civil servants or any public officer, the Act was repealed with effect from 1st April, 1995. Even if the Act was not repealed at the time the Civil Service Commission retired him, it was ultra vires of the Commission because section 5 of the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap 55, Laws of the Federation of Nigeria, 1990 vested no power on the Civil Service Commission to retire him or any civil servant of the State, appellant argued. He called the attention of the court to Establishments Circular ED. 1/1996 No. SIPEN.24/1/320 and submitted that the purpose of the circular was to draw the attention of civil servants of the existence of the provision of section 4 of the Pensions Act, Cap 346. He urged the court to hold that his retirement was illegal, being contrary to the provision of the Pensions Act, the only law that can retire him and any public officer in the country. Appellant submitted on Issue No.2 that the application of section 6 (1) (b) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990 was an anachronism. He pointed out that the subsection refers to operation or anything duly done or suffered previously that is, when the Act was in force and not repealed. He contended that the relevant paragraph applicable to this case is (a) not (b). He contended that the Implementation Guidelines on the Civil Service Reforms of 1988, (Re-organisation) Act, was repealed on 1st April, 1995 and the Civil Service Commission retired him on 8th July 1998 – that is after three years of the repeal of the Act. Relying on UBA v. G.M.B.H (1989)3 NWLR (Pt. 110) 374 at 391, Obatoyinbo v Oshatoba (1996) 5 NWLR (Pt. 450) 531 at 548 and Eduok v Nwoko (2003) 28 W.R.N. 85 at 105, appellant submitted that the Court of Appeal was in error in holding that his retirement was in accordance with the Implementation Guidelines on the Civil Service Reforms of 1988, Cap 55 and that section 6 (1) (b) of the Interpretation Act is applicable. He urged the court to allow the appeal.
Learned counsel for the respondents Mr. Paul Ananaba submitted on Issue No.1 that the appellant is wrong in arguing that the only law under which any public officer including the appellant, can be retired is the Pensions Act Cap 346. He relied on the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap. 55 Laws of the Federation of Nigeria, 1990 and the two letters communicating the retirement to the appellant. Accordingly, the Honourable Commissioner for Water Resources and Rural Development Kaduna State and the Civil Service Commission of Kaduna State are the appropriate statutory authorities for the retirement of Civil servants in Kaduna State, including the appellant, learned counsel contended. He relied on section 5 of the Implementation Guidelines on the
Civil Service Reforms of 1988, Cap 55.
Learned counsel submitted on Issue No.2 that section 6(1) (b) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990 was properly construed by the Court of Appeal. The repeal of the Implementation Guidelines on the Civil Service Reforms of 1988 Cap.55, on April, 1995 does not affect those already proceeding on retirement. Implementation Guidelines on the Civil Service Reforms of 1988 subsists notwithstanding the repeal by the Civil service (Reorganisation) Act, Cap 55 Laws of the Federation of Nigeria on 1st April, 1995. He relied on Adewunmi v. Attorney General Ekiti State (2002) 2 MJSC, 1, Afolabi v. Government of Oyo State (1985) 2 NWLR (Pt.9) 734, Uwaifo v Attorney General of Bendel State (1982) 7 SC 124. He urged the court to dismiss the appeal.
Appellant in his reply brief, submitted that as he had not attained sixty years before he was retired, the retirement did not comply with section 4 (1) of the Pensions Act, Cap 346, Laws of the Federation of Nigeria 1990. As the reply brief is essentially repetitive of the appellant’s brief, I shall not go into it any further because that is not the function of a reply brief. The function of a reply brief is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief.
The first issue I should take is whether the Pensions Act is applicable in this case. It is the submission of the appellant that the Act is applicable. It is the submission of counsel for the respondents that it is not, as the appellant was not retired on the basis of the Pensions Act but on the basis of the Implementation
Guidelines on the Civil Service Reforms of 1988 (Re-organisation) Act and Establishments Circular ED.1/1996, No. S/PEN 24/1/320.
Dealing with the issue, the Court of Appeal said at pages 192 and 193 of the Record:
“But if I must answer the question, the respondents did not state in the correspondence conveying appellants retirement to him that he was retired on the strength of the provisions of section 4 (1) of the Pension Act, Cap.346 of the Laws of the Federation of Nigeria, 1990. The Civil Service Commission’s letter communicating Appellant’s -retirement to him, exhibit 1A16 did not state the appellant was retired on the provisions of the Pension Act Cap.346. Rather it categorically stated that the retirement was in accordance with the provisions of Implementation Guidelines on the Civil Service Reform of 1988 and
Establishments Circular ED.1/1996, No.S/PEN.24/1/320 of 14th January 1996”
This conclusion, with the greatest respect, is not vindicated by Circular No.ED.1/1996 written by Dr. Saidu Goje, Director General (Establishments). Paragraph 2 of the circular reads:-
“I wish to point out that the number of these cases are becoming too numerous just as they are unbearable on Government’s slim purse, because the practice of condoning the period of over-stay in service by officers with impunity have encouraged civil servants to continue to grossly abuse the favour and, therefore, become pretentiously unmindful of their retirement dates and as such do not vacate office as and when due. Thus, it has become inevitable to draw your attention to section 4 of the Pension-Decree No. 102 of 1979 (underlining provided for emphasis only) as well as the provision of our circular ED.9/1995 (reference NO.S.GEN.24/Vol.1/74 dated 20th October (1985) all of which make it mandatory for all grades of officers in the civil service, (with exception of High Court Judges whose retirement age is 65 years of service) which ever comes first. Besides, no additional pension or gratuity is earned by any officer who remains in service after his 60th birthday or after the completed 35 years of public service.”
The above is a general circular. It clearly made reference to the Pensions Act. I must concede that the reference to the Pensions Act is not important because the circular was not sent to the appellant. I will refer to the relevant document. It is Exhibit 17, a letter written by the Director General on behalf of the Commissioner for Water Resources and Rural Development to the appellant. The letter reads:
“RE: RETIREMENT AND HANDING OVER OF OFFICE
Subsequent to ours REF No.WRRD (PER/504/T/Vol.1/11 dated 31st March, 1998 and in accordance with the provisions of section 4 of the Pension Decree No.102 of the year 1979 (Again underlining for emphasis only) you were due for retirement by December, 1997. Up to now, you have refused to submit your retirement notice accordingly;
I am directed to ask you to hand over your Office latest by Monday, 27th day of April, 1998. An advance copy of the handing over note should reach my office by 10.00a.m of the same day.”
Again, Exhibit 17 clearly mentioned section 4 of the Pensions Decree No.102 of 1979. Is the Court of Appeal therefore right in holding that the appellant was not retired on the strength of the Pensions Act” I think not. The Court of Appeal, reacting to the above letter, said at page 195 of the Record:
“Exhibit 17, a letter written. by the Director General on behalf of Commissioner for Water Resources and Rural Development with reference No. WRRD/PER,504,T/V.1/15 dated 24th April, 1998, making reference to Pension Act is irrelevant. It is not only irrelevant but also premature in the sense that the letter was written on behalf of a person or by a person who has no constitutional power to retire the
appellant. It is a mere irritant emanating from an exuberant officer and should or ought to be treated with contempt it deserved especially when it pre-dated serving the Civil Service Commission’s letter exhibit 1A 1b on the appellant on 23rd July, 1998.”
With the greatest respect, I am not with the Court of Appeal. I am unable to go along with the Court at all. What is irrelevant about the letter What is premature in respect of the letter Something is said to be irrelevant when it is not relevant. I do not think. I have said much. I should go further. Something is irrelevant when it does not have any real connection with or relation to something else as one can say
“If Amatare can do the job well, his age is irrelevant”. If do not see any irrelevance in a letter which relies on the Pensions Act as basis for the retirement of the appellant, a fortiori, when the respondents deny that the appellant was retired on the basis of the Pensions Act. Can there be a more relevant situation than this Are the Circular to the entire Civil Service and the letter to the appellant not admission against interest I would like to think so, and I think I am correct in so thinking.
I come to the word “premature”. The word dictionary means developing or happening before the natural or proper time, as one can say his premature death at the age of 18years is a great loss. What is premature about the letter Could the letter have waited for tendering after the case was completed That cannot be because at that time there will be no legal basis for tendering the letter. There will be nowhere to tender the letter. I do not therefore agree with the Court of Appeal that it was premature, “in the sense that the letter was written on behalf of a person or by a person who has no constitutional power to retire the appellant.” That is certainly not my understanding of the word. In my humble view, the appellant tendered the letter at the appropriate time. He tendered it at the proper time.
The Court of Appeal went further to pass aspersion on the Director General. The court referred to him as an “exuberant officer” With respect, I do not think so. I do not agree with the Court of Appeal that the Director General was “an exuberant officer and should or ought to be treated with contempt it deserved” There is no such evidence before the trial court and I will certainly shy away from that conclusion. Exhibit 17 was written on behalf of the Commissioner for Water Resources and Rural Development. In my humble view, the letter duly emanated from constituted authority. While I agree with the Court of Appeal, that the Director General has no constitutional power to retire the appellant, I must say that by section 5 of the Implementation Guidelines the Civil Service Reforms of 1988 (Re-organisation) Act,
Cap 55, Laws of the Federation of Nigeria, 1990, the Commissioner was vested with the power to appoint, dismiss and take disciplinary measures against civil servants. Whether the above powers cover retirement is a different matter altogether. I will not go there. One other reason why the Court of Appeal did not think much about the letter is because it pre-dated serving the Civil Service Commission’s letter, exhibit 1A16 on the appellant on 23rd July, 1998. While I agree that it is the fact, I do not see how it reduces the evidential or probative content of the letter. I think the appellant has the right to use the letter in a number of ways to contradict the respondents, particularly as Exhibit 1A16 of 23rd July 1998 did not make reference to the letter by nullifying it.
Which of the Pensions Statute is applicable Is it the Pensions Act as contended by appellant or the Pensions and Gratuities Law of Kaduna State The applicable statute, in my view, is the Pensions and Gratuities Law, Cap III, Laws of Kaduna State 1991. Section 9(1) of the Law provides:
“Every officer shall retire upon attaining the age of sixty years, so however that officers retiring on or before 31st March, 1977, the compulsory retiring age shall be fifty-five years.”
As it is, the subsection is mandatory, imperative and pre emptory as it provides for the word of command, “shall”. In the con of section 9(1), it connotes “must” as it is inconsistent with exercise of discretion. While the word may at times be construed as conveying a permissive or directory meaning of “may” it is my view that it maintains its usual meaning of command or compulsion in section 9(1). See generally Chief Ifezue v Mbadughan (1984) 5 SC 19., Captain Amadi v NNPC (2000) 10 NWLR (Pt.674) 76, General Bamaiyi v Attorney General of the Federation (2001) 12 NWLR (Pt.727) 468, Ogidi v The State (2005) 5 NWLR (Pt.918) 268.
Interpreting the word in its mandatory, imperative and pre emptory content means that an officer, including the appellant, must retire from the service upon attaining the age of sixty years. That is the first leg of the subsection. The second leg does not apply to the appellant. The twist in this matter comes or arises from the retirement of officers who have completed thirty five years in the service but who have not clocked sixty years. The question is this: Where does the requirement of completion of thirty five years come from The Pensions and Gratuities Law of Kaduna State does not specifically provide for the alternative of thirty-five years service. I will answer the questions later in this judgment. For now let me take other areas. It is the case of the respondents that the appellant was retired by virtue of the Implementation Guidelines on the Civil Service Reforms of 1988 (Reorganisation) Act, Cap. 55 and Establishments Circular ED.1/1996 NO.S/PEN.24/1/320. I sound repetitive here; it is good for emphasis and so I repeat it.
I will take them in turn. First, the Civil Service (Re-organisation) Act, Cap. 55. Appellant submitted that the Act was repealed with effect from 1st April, 1995. What I want to take now is whether the Civil Service (Reorganisation) Act, Cap. 55 Laws of the Federation of Nigeria, 1990, even if not repealed, is applicable in the case. I say this because the statute, being an Act should apply only to the Federal Civil Service and accordingly in respect of Federal Civil Servants. Section IV of the Schedule to the General Guidelines for the Implementation of the Civil Service Reforms, does not pretend to apply to the States, although section 3(2) of the Act seems to involve the States. It does not appear that the provision is in conformity with the 1979 Constitution which was in force at the material time. I will not pursue this as it was not raised by the parties. I merely thought aloud. The respondents agreed with the repeal when their counsel submitted that “the repeal of the Implementation Guidelines and the Civil Service Reforms of 1988 Cap. 55 in April 1995 does not affect those already proceeding for retirement”.
Assuming that the Act applies, does it cover retirement of civil servants Appellant argued that by section 5, only the Ministries in the Civil Service have the power to appoint, dismiss and discipline persons. I do not think the section covers the situation in this appeal, which is retirement. The section does not provide for retirement. Retirement is certainly different from appointment, dismissal or disciplinary control as provided in section 5 of the Act. In my humble view, the applicable law is section 9 of the Pensions and Gratuities Law of Kaduna State, 1991 which provides for retirement of officers.
Appellant kindly copied the Establishments Circular at pages 11 to 13 of his brief. The relevant portion is in paragraph 2 of the circular. I reproduce it once more:
“Besides, no additional Pension or gratuity is earned by any officer who remains in service after his 60th birthday or after the completed 35 years of public service.”
While the requirement of the 60th birthday of an officer is in conformity with section 9(1) of the Pensions and Gratuities Law of Kaduna State, 1991 the additional requirement of 35 years, in the alternative, is not specifically provided in the Statute.
So far so good for the appellant, but it is not a bed of roses for him at the end of the day. In the course of preparing this judgment, one of my brothers in the Panel called my attention to section 9(2) of the Pensions and Gratuities Law, Cap 111, Laws of Kaduna State, 1991. The subsection reads:
“The Commission may require an officer to retire from the service at any time after he has attained the age of 45 subject to three months notice in writing of such requirement being given.”
The subsection clearly stops or prohibits any possible fortunes of the appellant in this appeal. Although the subsection does not specifically provide for the alternative thirty five years service, the totality of the provision is consistent with the retirement of the appellant. There is no dispute that he was more than forty-five years when he was retired. By the subsection, the appellant or any other civil servant can be asked to go on retirement if he has completed a service of thirty five years. In my view, the appellant’s retirement was in accordance with section 9(2) of the Pensions and Gratuities Law, 1991 of Kaduna State, and I so hold.
I think I can stop here. It is not necessary to take Issue 2 in the light of my conclusion on Issue 1, because it is largely academic to do so. Courts of law are not interested in academic matters.The appeal fails and it is dismissed.
I award N50,000.00 costs to the respondents.
SC.146/2003