Comptroller Abdullahi B. Gusau V. Comptroller General Of Customs & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court, Abuja Judicial Division (Coram; Oloto, J.) in suit No. FHC/ABJ/CS/277/2011 delivered on 14th December, 2012, dismissing the case of the appellant against the respondents for unlawful retirement from the service of the 2nd respondent.

The appellant was transferred from the service of Sokoto State Government to the service of the 2nd respondent in 1990 and he rose up to the rank of Comptroller of Customs. On 21st December 2009, the appellant, along with thirty-one other Comptrollers of Customs, was compulsorily retired from the service of the 2nd respondent.

Aggrieved by the turn of events the appellant, along with another Comptroller, sued the respondents at the Federal High Court, Abuja Division (“the lower court” for short) claiming as follows;

“1. A DECLARATION that the purported retirement of the plaintiff from the services of the 2nd Defendant is unlawful, malicious, irregular and a flagrant violation of the plaintiff’s right of employment until the mandatory retirement age.

2. AN ORDER of this Honourable Court setting aside the purported retirement of the plaintiff by the 1st, 2nd and 4th Defendants through a public notice as unlawful, malicious, irregular and a flagrant violation of the plaintiff’s right of employment until the mandatory retirement age.
3. AN ORDER of this Honourable Court to the Defendants allowing the plaintiffs to resume back to work and maintain their positions as Comptroller of Customs and to be paid all their benefits and emoluments therein and also to enjoy their lawful promotions.
4. AN ORDER awarding the sum of N20, 000,000 (Twenty Million Naira Only) to the plaintiffs as general damages for the trauma, of forceful loss of job occasioned by the 1st and 2nd Defendants”.

The lower court, as earlier stated, dismissed the case of the appellant on account of service reform of the 2nd respondent.

Dissatisfied by the turn of events, the appellant appealed to this court filing two notices of appeal – one dated and filed on 4/2/2013 and the second dated 5/3/2013 but filed on 7/3/2013. The appellant abandoned the notice of appeal filed on 4/2/2013 and the same is hereby struck out.

In his brief of argument, G. T. Afolabi, Esq; of counsel, for appellant formulated 5 issues for the court’s determination of the appeal. The issues are;

“1. Whether the retirement of the appellant by the respondent on ground of advance age and extended tenure of 10 years as comptroller of customs was not unlawful, malicious, irregular and flagrant violation of the Section 2 paragraph 2 of the Nigeria Customs Condition of Service and Section 1 paragraph 16 of the Public Service Rules.

2. Whether there is sufficient evidence necessary material to substantiate the allegation of plaintiff/appellant that the defendant (respondent) communicated his retirement by a means not prescribed by law and has IPSO facto proved his case on the preponderance of evidence to be entitled to the relief sought.
3. Whether in the circumstance of this case, the defendant (respondent) original statement of defence still defines the issues between the parties, despite amendment made and amended statement of defence filed without statement on oath is not deemed abandoned.
4. Whether the learned trial judge properly assessed and evaluate the evidence adduced before him and judgment is not against the weight of evidence.
5. Whether the policy guidelines on the reforms can be used to circumvent the supremacy of the Public Service Rules 2000 and 1999 Constitution of the Federal Republic of Nigeria and whether the trial judge was right to have arrived at the judgment delivered on the 14th day of December, 2012 on the basis of policy guideline on extended 10 years as Comptroller of Customs”.

On his part, Chiesonu I. Okpoko, Esq; of counsel, for the respondents in his brief of argument formulated 2 issues for the court’s determination.

The issues are:

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

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

Counsel for the appellant proffered the following arguments in respect of the issues formulated by him;