Chief Augustine A. Nawa V. Attorney-general, Cross River State & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Hon. Justice Philomena Ekpe of the High court of Cross River State delivered on 19th day of December, 2005 in Suit No. C/450/99.

The appellant, Chief A. A. Nawa, instituted proceedings against the respondents, Attorney-General of Cross River State and 2 others, before the High Court sitting in Calabar, where he claimed:

“(1) A declaration that the purported malicious, vexatious and pre-mature retirement of the plaintiff from his substantive civil service career position as Permanent Secretary was done mala fides therefore ultra vires the powers of the defendants and not in accordance with any procedure permitted by law.

(2) An order re-instating the plaintiff to his substantive career position as Permanent Secretary in the Civil Service of the Cross River State.”

The appellant testified for himself and tendered 6 Exhibits as PW1 but called no other witness. The respondents also called one witness for the defence to the claim. At the conclusion of the hearing, the trial judge dismissed the claim of the appellant. Dissatisfied with the judgment of the trial court, the appellant appealed to this court on the 26th day of January, 2006 on two grounds. The grounds of appeal are:

“1. The learned trial judge erred in law when he held that the termination of the employment of the appellant a career civil servant was at the pleasure of the respondents.

Particulars Error [sic]

(a) The decision of the trial judge fall short of the decided case of NEPA VS. ANGO (2001) 17 WRN 142 or (2001) 15 NWLR(Pt. 737) 627 at 631 – where it was held that an employee whose appointment has statutory flavour has no right to terminate his appointment at will because the employee does not hold his appointment at the pleasure of such employer.

(b) The trial judge erred when he held that respondents can unilaterally terminate employment of the appellant whose employment was with statutory flavour.

2. The learned trial judge erred in law when held that the 1999 Constitution does not say that the respondents must abide by the Civil Service Rule of Cross River State in order to hire or fire the appellant as Permanent Secretary.

Particulars of Error

(a) The learned trial judge erred when he held that the appellant employment was not subjected to any other statute apart from the Constitution of Federal Republic of Nigeria 1990.

(b) The learned trial judge failed to consider the provisions of the Civil Service Rules and Regulations which governed the manner upon which the appellant may be retired or removed from service in reaching its decision.”

The appellant filed his brief of argument dated 24/7/06 and filed on 27/7/06.

From the two grounds of appeal the appellant distilled two issues for determination.

The issues are as follows:

“1. Whether appellant’s employment had any statutory flavour such that it could only have been determined by respondents strict compliance with the provision of the Civil Service Rules and Regulations of Cross River State and the provisions of the Pension Act 1990. Laws of the Federations.

2. Whether the Governor of a State has the Constitutional power to compulsorily retire a career Civil Servant by virtue of Section 208 of the 1999 Constitution without recourse to the Civil Service Commission and its Rules.”

The respondents in their brief dated 31/7/06 and filed on 3/8/06 distilled one issue for determination. That is –

“Whether the Governor in removing the appellant from office under Section 208 of the Constitution was obliged to comply to the Pensions Act or with the Civil Service Rules”.

The appellant after being served with the respondents’ brief filed a reply brief dated 14/8/06 and filed on 17/8/06.

It is important to mention that although the respondents filed a joint respondents’ brief they did not appear in court on the date of hearing on 18/1/07, even though they were duly served with the hearing notice. That being the case and pursuant to the provisions of Order 6 Rule 9(5) of the Court of Appeal Rules, the respondents were deemed to have argued their appeal. The appellant at the hearing of the appeal did not make any oral submission but adopted and relied on his brief.

The appellant in Issue one submitted that he was a public servant and that his appointment had statutory flavour by virtue of Civil Service Rules and Regulations of Cross River State of 1975, Section 197 of 1999 Constitution and Section 4 of the Pensions Act, Cap 346, Laws of Federation of Nigeria, 1990. He relied on the cases of Olaniyan vs. University of Lagos (1985) 2 NWLR (Pt.9) 599; Federal Civil Service Commission vs. Laoye (1989) 2 NWLR (Pt. 106) 652; Fakuade vs. OAUTH (1993) NWLR (Pt. 291) 47 and Offoelo vs. N. E. P. Plc. (2006) 4 WRN 189 at 184 Held 2.

The learned counsel for the appellant submitted that he cannot be removed from office without full compliance with the relevant provision of the constitution. He also pointed out that by virtue of Section 4(1) of the Pensions Act, Cap 346, Laws of the Federation of Nigeria, 1990 and the Cross River State Civil Service Rules and Regulations the statutory age of retirement of a public servant like the appellant is 60 years or after 35 years of service whichever comes first. It was pointed out that the appellant has not reached the compulsory retirement age of 60 years because he is 52 years old and he has only served for 24 years out of 35 years. Therefore, the appellant whose appointment had statutory flavour cannot be terminated by the Governor at will, because he did not hold his appointment at the pleasure of the Governor of Cross River State.

The learned counsel for the appellant submitted that the purported compulsory retirement of the appellant from the civil service of the Cross River State is like a disciplinary action against the appellant who had not committed any crime or misconduct. He concluded that if any disciplinary action is to be taken pursuant to any statute, law or rule, there must be full compliance with them or any of them as required before such disciplinary action can be properly justified. He relied on United Bank of Nigeria vs. Ogboh (1995) 2 NWLR (Pt. 380) 647 at 669; Iderima vs. RSCSC(2006) 7 WRN 11 Held 5; University of Calabar vs. Inyang (1993) 5 NWLR(Pt. 291) 100 and Shitta-Bay vs. Federal Public Service Commission (1981) 1 SC. 40 and concluded that the purported compulsory retirement of the appellant from the service of Cross River State was in contravention of Pensions Act 1990 and the Cross River State Civil Service Rules and Regulations of 1975 and it is wrongful.

On Issue two, the learned counsel for the appellant submitted that from the plain and unambiguous provisions of Section 208(1) of the 1999 Constitution, the appellant was a public servant and not a political appointee. The appellant being a civil servant in the established and pensionable cadre is not an employee at the pleasure of the Governor.

The learned counsel also submitted that the word removal under Section 208 of the 1999 Constitution does not mean retirement. He referred to “Blacks Law Dictionary, (with Pronunciations) sixth Edition, page 1295”, where the words “removal” and “retirement” were defined. He pointed out that where a person has been appointed from the public service of the Federation or a State he shall be entitled to continue in such public service when the governor ceases to hold office. He argued that since the Governor appoints a Permanent Secretary upon the recommendation of the Civil Service Commission as far as the he remains in the public service the Civil Service Rules guide his appointment and matters of his discipline. This is made abundantly clear by paragraph 2(2) of Part II of the 3rd Schedule of 1999 Constitution. Therefore, for the respondents to retire the appellant they must comply strictly with all the rules governing the retirement in accordance with the Cross River State Civil Service Rules and Regulations. Failure to do that renders the retirement ultra vires, null and void. See Federal Civil Service Commission vs. Laoye (supra); Olaniyan vs. University of Lagos (supra); Iderima vs. RSCSC (2006) 7 WRN 9 Held 3; Akintemi vs. Onwumechili (1985) 1 NWLR (Pt.1) 68; Aiyetan vs. NIFOR (1987) 3 NWLR (Pt. 59) 48; Sapera vs. University College Hospital Management Board (1988) 4 NWLR (Pt. 86) 581 and Iderima vs. RSCSC (2006) 7 WRN 11 Held 7, per Edozie, JSC He therefore submitted that the State Governor cannot retire a career Civil Servant under Section 208 of the 1999 Constitution without having recourse to the provisions of Civil Service Rules and Regulations of Cross River State and the Pensions Act 1990.

The respondents in their lone issue formulated contended in their brief that although the appellant started his career in the civil service in 1979, he ended it on 24/6/99 as a political appointee being a person appointed exclusively by the Governor of Cross River State under Section 208 of the 1999 Constitution. As such he was subject to removal by the Governor in the same way he was appointed on 29th May of 1999 by the Governor. Learned counsel for the respondents relied on the provisions of Sections 208(1) & (2) and 316(2) of the 1999 Constitution, and pointed out that though by virtue of Section 318 of the 1999 Constitution and in the definition of the powers of the State Civil Service Commission in paragraph A (Pt. 2) 3rd Schedule, a Permanent Secretary can be described as “a person in the civil service of a State”, he is also a person whose appointment and removal are vested exclusively in the governor and definitely not the Civil Service Commission by virtue of the provisions of Section 208(1) and (2) of the 1999 Constitution.

It was also contended that the State Governor in removing the appellant from the office is not obliged to have recourse to the provisions of the Pensions Act or the Cross River State Civil Service Rules and Regulations. It is therefore patently wrong to read into Section 208 of the 1999 Constitution the requirement that the removal of the appellant from the office must conform to the provisions of other legislations mentioned above. He pointed out that in paragraph A, sub-paragraph 2(1) of Part II 3rd Schedule of the 1999 Constitution, it is provided that the Commission shall have power without prejudice to the powers vested in the governor to appoint persons to the offices in the State government and dismiss and exercise the disciplinary control over persons holding such offices. He then submitted that the phrase “without prejudice” has the same meaning as the phrase “subject to”. He relied on the cases Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, at 542 B – H; Aqua Ltd. vs. OSSC(1988) 10 – 11 SCNJ 26, at 51 and others.

The respondents submitted also that the appellant did not make a substantive case for the application of the provisions of Civil Service Rules because the appellant did not mention the specific Civil Service Rules he relied upon and he did not plead, tender or refer to the instrument that conferred security of tenure on him contrary to the requirement of Order 25 Rule 6 of Cross River State High Court Civil Procedure Rules.

Learned counsel for the respondents relied on the case of Oloruntoba-Oju vs. Lawal (2001) FWLR(Pt. 72) 2029 at 2033 and Okomu Oil Palm vs. Iserhienrhien (2001) 5 NSCQR 802, and submitted that when an employee complains that his employment has been wrongfully terminated, he has the onus to place before the court the terms of the employment and to prove in what manner the said terms were breached by the employer.

The appellant in his reply brief submitted that it is no longer necessary to plead statutes before reliance could be placed on them because all that is required of a party is to plead material facts which will lead to certain legal result, and once such material facts have been pleaded the inference to be drawn from such pleaded facts and particular law to be relied upon for such an inference need not be pleaded. He relied on the case of A. B. U. Zaria vs. Molokwu (2004) 2 WRN 170. Learned counsel for the appellant submitted that the appellant in his evidence at the trial court particularly pages 82 to 85 of the record of proceedings stated the manner and procedure upon which his employment could be terminated. The relevant facts were pleaded by the appellant and he led evidence before the court stating that his employment was in accordance with the Cross River State Civil Service Rules and Regulations and that the required age of retirement for civil servant is 60 years or service for 35 years whichever one comes first. Lastly, the appellant’s counsel submitted that where the employment is governed by conditions and terms of the service are contained in regulations derived from statutes or enactments, the courts are entitled by virtue of Section 74 of Evidence Act to take judicial notice of such enactments which are relevant to the facts.

I have carefully considered the issues formulated by the parties in this appeal and in my view the issues formulated by the appellant are preferable because they bring out the issues in this appeal in their proper perspective and are derivable from the grounds of appeal filed. I observed that the respondents in paragraphs 4.1 to 4.9 of their brief raised the issue of whether there was a substantive case made out by the appellant for the application of Civil Service Rules. This issue was never considered by the trial court and it made no such finding. There is no ground of appeal filed on the issue and the appellant did not raise any issue for determination in respect of this. In other words, the question whether the appellant made a substantive case for the application of the Cross River State Civil Service Rules was never an issue for determination before the trial court. Though, the respondents are entitled to frame their own issues for determination which may be the same with the ones framed by the appellant or may be different from them, all that is important is that those issues must of necessity be distilled from and related to the grounds of appeal filed by the appellant. If the respondents wanted to raise it as an issue for the first time in the Court of Appeal then they ought to have asked for leave. In the instant appeal, the issue raised by the respondents is not related to the grounds of appeal and no leave of this Court was sought and obtained to raise it as an issue. It is observable that the respondents did not file a cross-appeal therefore they cannot formulate an issue for determination which is not related to the grounds of appeal. Where respondents did not cross-appeal or file notice to raise fresh issues on appeal, an appellate court would determine whether the decision of the trial court is right based on the appellant’s appeal. This is because an Appeal Court would refuse to consider or make pronouncement on any issue formulated for determination which does not arise from grounds of appeal filed. In the instant case, the issue raised in paragraphs 4.1 to 4.9 of the respondents’ brief did not relate to or arise from any of the grounds of appeal and is therefore liable to be discountenanced. See Udom vs. Micheletti & Sons Ltd. (1997) 8 NWLR (Pt. 516) 187; Bendel Insurance Co. Plc. vs. B. C. M. Finance (1997) 8 NWLR (Pt. 518) 597, Takum L. G. vs. U. C. B. (Nig.) Ltd. (2003) 16 NWLR (Pt. 846) 298 at 299. In Abutu vs. Onyedima (2003) 17 NWLR (Pt. 849) 359 at 371, this Court held that an issue for determination in an appeal should relate to the grounds of appeal filed. Where it is not so related, it is liable to be struck out. However, I have, in order to fulfill all righteousness decided to touch on the point raised by learned counsel for the respondents. It is important to note that the appellant relied on the Cross River State Civil Service Rules and Regulations which were made pursuant to Section 197 of the 1999 Constitution and Section 4(1) and of the Pensions Act, Cap 346, Laws of the Federation of Nigeria. The Cross River State Civil Service Rules and Regulations 1975 having been made pursuant to Section 197 of the 1999 Constitution have constitutional force which vest on the appellant a legal status. Where the employment of a civil servant is governed by a regulation or rule derived from a statute or enactment the court is entitled to take judicial notice of such statute or enactment. See A. B. U. Zaria vs. Molokwu (2004) 2 WRN 170 Held 4. A party to a suit is not under any obligation to set out the contents of a statute in his pleadings for it to apply to the issues of fact and law raised in a suit. A statute has the force of law which compels everyone within the realm of its application to be bound by its provisions. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 364 – 365.

Thus, whether or not issue is joined by the parties to a suit on a particular statute, the court is not precluded from looking at and construing its provision. Parties need not join issues in their pleadings on a point of law or statutory provision. Once a law or statutory provision is found applicable, it will be readily applied by the court notwithstanding that parties have not expressly joined issues on it in their pleadings. See the case of Guinness Nig. Ltd. vs. Agoma (1992) 7 NWLR (Pt. 256) 728 at 740 – 741. Therefore, the issue raised by the respondents as aforesaid must be struck out and discountenanced. In the circumstances I shall rely on the two issues formulated by the appellant in this appeal.

Having carefully perused and reflected on the evidence adduced before the lower court particularly at pages 82 to 86 of the record, it is clear that the appellant was employed as a civil servant by the Cross River State Civil Service Commission.

It is in evidence that the appellant was employed in August 1976 by the 2nd and 3rd respondents as a Planning Officer II in the Ministry of Finance, Cross River State, a position from which he rose to the position of Director-General. He was later on appointed Permanent Secretary on the 24/3/99. See the Letter of Appointment marked as Exhibit 1 at page 83 of the record of proceedings of the trial court. The appellant also testified that he was a civil servant subject to the Cross River State Civil Service Commission Rules and Regulations. I find therefore that the appellant’s employment was regulated by the Civil Service Rules and Regulations of Cross River State made pursuant to the provisions of Section 197 of the 1999 Constitution and the Pensions Act, Cap 346, Laws of the Federation, 1990. An employment is said to have statutory flavour when it is protected or regulated by statute as in the case of the appellant in this appeal. The appellant was a public servant of the Cross River State and his employment had statutory flavour. See the cases of Olaniyan vs. University of Lagos (supra); Federal Civil Service Commission vs. Laoye (supra); Eperoku vs. University of Lagos (2004) 16 WRN 90; Bakare vs Lagos State Civil Service Commission (1992) 10 SCNJ 173; Ogieva vs. Igbinedion (2004) 49 WRN 149 at 131 Held 2 ; Udo vs. CSNC (2001) 14 NWLR (Pt. 732) 116; Geidam vs. N.E.P.A. (2001) 2 NWLR (Pt. 696) 45 and NITEL Plc. vs. Ocholi (2001) 10 NWLR (Pt. 720) 188.

Under the Cross River State Civil Service Rules and Regulations, 1975 and section 4(1) and (2) of the Pensions Act, 1990 that governed the appellant’s appointment, his employment was to be subsisting for 35 years of service or on attainment of 60 years of age. The appellant was compulsorily retired by a letter dated 25/8/99 which was admitted in evidence as Exhibit 2 at page 84 of the record.

His retirement was with retrospective effect from 23/6/99. The appellant was 52 years of age as at the time he was compulsorily retired and he had served only 24 years without committing any offence or misconduct. Exhibit 2 did not indict the appellant, it merely conveyed the retirement to him. For clarity and ease of reference Exhibit 2 is hereby reproduced.

“GOVERNMENT OF CROSS RIVER STATE OF NIGERIA

Department of Establishments and Service

Matters,

Governor’s Office,

Calabar.

25th August, 1999

Our Ref: GO/ES/CR/CP/12192/34

Chief Augustine A. Nawa

(PERMANENT SECRETARY)

u.f.s. The Secretary to the State Government,

Governor’s Office,

Calabar.

Sir,

APPROVAL FOR RETIREMENT

I refer to our letter No. GO/ES/CR/CP/12192/32 dated 24th June, 1999 and hereby wish to inform you that His Excellency, the Governor of Cross River State, Mr. Donald Duke has now approved that you be retired as Permanent Secretary with effect from 23rd June, 1999.

2. You are please requested to forward all relevant retirement documents to this office for the processing of your entitlements as Permanent Secretary.
3. Once more the Government and people of Cross River State wish to thank you immensely for your contributions to the development of the Service in particular and the State in general. I hereby pray God to BLESS you in whatever other endeavour you may find yourself.
4. Copies of this letter are being forwarded to the secretary to the State Government, the Head of Civil Service, the Chairman, Civil service Commission, the Accountant-General, and the Auditor-General for their information and necessary action where applicable.
5. This letter replaces/cancels our former letter on the same subject matter.

I am, Sir

Your Obedient servant,

Sgd.

OWALI ILEM

PERMANENT SECRETARY’

The content of Exhibit 2 has a tinge of disciplinary flavour which requires the observance of the Civil Service Rules and Regulations. The appointment of the appellant was a permanent and pensionable employment which presupposes that he was entitled to continue until the retirement age of 60 years or 35 years in service. See Section 4(1) of the Pensions Act, Cap 346, Laws of the Federation of 1999 Constitution. It is therefore clear that the appellant was prematurely retired.

Compulsory retirement of a civil servant compels the inference that the civil servant is being subjected to disciplinary action for the commission of any crime or misconduct. In the case of the appellant in this appeal, there is no evidence that he committed any crime, offence or misconduct. If any disciplinary action is to be taken against him it must be in full compliance with the relevant statute, rule or regulation. See Iderima vs. RSCSC(supra) and Shitta-Bay vs. Federal Public Service Commission (supra).

Obviously, the appellant was not retired in accordance with the civil service” rules and regulations and neither was the proper procedure for the compulsory retirement of the appellant followed in this matter. The appellant is a civil servant therefore, he cannot be retired at the pleasure of the Governor or without compliance of the Cross River State Civil Service Rules and Regulations which governed his appointment. It is well settled law that when a statute directs that certain procedures be followed before a person can be deprived of his right, whether in respect of his person or office, such procedure must be strictly followed. See UNTHMB vs. Nnoli (1994) 8 NWLR (Pt. 363) 376.

By virtue of the provisions of Section 202 of the 1999 Constitution, it is the Cross River State Civil Service Commission that is empowered to discipline the appellant and this is not subject to the direction and control of any authority or person. See the case of Olaniyan vs. University of Lagos (supra). His tenure was subject to the relevant statutes and regulations made thereon and not subject to the whims and caprices of the respondents. See NEPA v. Ango (2001) 15 NWLR (Pt.737) 627. Since the respondents did not comply or refuse to follow the procedure provided by the civil service rules and regulations of the Cross River State 1975, their action in purporting to retire the appellant is a nullity.

Having regard to the foregoing I resolve Issue one in favour of the appellant.

I now come to Issue No.2. This issue deals essentially with the fact of whether the Governor of the State has constitutional power to retire a career civil servant, in this case the appellant, by virtue of the provisions of section 208(1) of the 1999 Constitution without recourse to the Civil Service Rules and Regulations of Cross River State, 1975.

A convenient point to begin is a careful examination and consideration of the provisions of section 208 of the 1999 Constitution. The section provides:

“(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office vest in the Governor of the State.

(2) The offices to which this section applies are, namely:

(a) Secretary to the Government of the State.

(b) Head of the Civil Servant of the State.

(c) Permanent Secretary of other Chief executive in any Ministry or Department of the Government of the State howsoever designated; and

(d) Any office on the personal staff of the Governor.

(3) An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent Secretaries or equivalent rant in the civil service of any State or of the Federation.

(4) In exercising his powers of appointment under this section, the Governor shall have regard to the diversity of the people within the State and the need to promote national unity.

(5) Any appointment made pursuant to paragraphs (a) and (d) of subsection (2) of this section shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office.

Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or the State when the Governor ceases to hold office.”

From the provisions of Section 208(1) of the 1999 Constitution, two expressions are significant and paramount, these are: “(a) “to appoint” (b) “to remove”.

Whereas there is no dispute or controversy as to the power of the Governor to appoint persons to hold or act in the offices stated under section 208(2) of the 1999 Constitution, the parties vehemently disagree as to the definition and meaning of the expression “to remove”, under section 208(1).

It is the contention of the appellant that the word “to remove” does not mean “retirement” and does not include “retirement”. Learned counsel for the appellant submitted that the word “to remove” and “retirement” mean different things. On the other hand, learned counsel for the respondents submitted that the word “to remove” under section 208(1) of the 1999 Constitution include termination, dismissal, and retirement. At this juncture, it becomes necessary to define the word “to remove”. The expression “to remove” and the word “remove” is not defined in the “Blacks Law Dictionary (with Pronunciations) 6th Edition but at page 1295 the expression” removal from office” is defined as follows:

“Deprivation of office by act of competent superior acting within scope of authority. “Suspension” is the temporary forced removal from the exercise of office; “removal” is the dismissal from office”.

In the same book at page 1316 the word “retirement” is defined as follows:

“Termination of employment, service, trade or occupation upon reaching retirement age, or earlier at election of employee, self-employed, or professional. Removal of fixed asset from service.”

In the “Oxford Advanced Learner’s Dictionary, 6th Edition” page 992, the word “remove” is defined inter alia to mean:

“to take something or somebody away from a place; or to make something disappear or to dismiss somebody from their position or job.”

In the same page the word “removal” is defined to mean:

“the act of taking somebody or something away from a particular place; or getting rid of something; or the act of dismissing somebody from their job.”

At page 1005 of the same Dictionary the word “retire” is defined to mean:

“to stop doing your job especially because you have reached a particular age or because you are ill/sick.”

At the same page, the word “retirement” means:

“the fact of stopping work because you have reached a particular age.”

From the above definitions it is clear that there is a world of difference between the words “remove” and “retire” or “removal” and “retirement”. Therefore, the expression to remove is not as all embracing as the learned trial judge held at page 136 lines 22 to 24 of the record of proceedings where she said:

“The plaintiff has been removed from office. I do not wish to dwell on the semantics of the term removal from office.

It is all embracing and can be by way of termination, dismissal, retirement, etc. All the plaintiff was to do was to quit the scene all be it compulsorily……”

It is obvious from the definitions stated above that the word “retire” or “retirement” has a technical meaning so the issue involved is not one of mere semantics. I, therefore, conclude that the word “remove” in the con in which it is used under section 208(1) of the 1999 Constitution, does not include retirement.

Therefore, the power of the Governor to remove officers stated under section 208(2) does not include the power to retire them.

The appellant was appointed to the post of Permanent Secretary on the recommendation of the Cross River State Civil Service Commission and was given a letter to that effect. See Exhibit 1 at page 83 of the record, line 38. For ease of reference Exhibit “1” is hereby reproduced.

“GOVERNMENT OF CROSS RIVER STATE

NIGERIA

OFFICE OF THE MILITARY ADMINISTRATOR

P.M.B.1056, CALABAR

OUR REF: (087) 225050

YOUR REF: TELEGRAMS ADMIN. CALABAR

Mr. Augustine Nawa,

Permanent Secretary,

Budget Department,

Military Administrator’s Office,

Calabar. 24 March, 1999

APPOINTMENT AS PERMANENT SECRETARY

1. I, Navy captain CHRISTOPHER IBE OSONDU, Military Administrator of the Cross River State of the Federal Republic of Nigeria, do hereby on the recommendation of the Civil Service Commission approve your appointment as Permanent secretary in the Cross River State of the Federal Republic of Nigeria. The appointment takes effect from 15th January, 1999.
2. The appointment has come to you as a result of your devotion to duty and hard work. I hope that you will work even harder to keep the position you have so deservedly attained. I wish you success in the years ahead.
3. Given under my hand and the Public Seal of the Cross River State of the Federal Republic of Nigeria at calabar, this 24th day of March, One Thousand, Nine Hundred and Ninety-Nine.

Sgd.

CI OSONDU

Captain (NN)

Military Administrator”

The appellant himself testified that his employment was governed by the Rules and Regulations of Civil Service Commission of Cross River State. He also testified that the required age for retirement for civil servant is 60 years or 35 years in service whichever comes first.

This is also made abundantly clear in paragraph 2(2) of Part II of the 3rd Schedule to the 1999 Constitution. Therefore, the Governor of Cross River State having appointed the appellant (Permanent Secretary) upon the recommendation of Civil Service Commission of Cross River State as far as he remains in the service, the Civil Service Rules and Regulations guide his appointment and matters of his discipline. See also the provisions of Section 202 of the 1999 Constitution which provides as follows:

“In exercising its power to make appointments or to exercise disciplinary control over persons the State Civil Service Commission, the State Independent Electoral Commission and the State Judicial Service Commission shall not be subject to the direction and control of any other authority or person.”

The above provision puts the matter to rest and leaves no one in doubt as to which authority is responsible for the discipline of the civil servants of the State. The case of Athanasius Kalada Hart vs. The Military Governor of Rivers State (1976) 11 SC 211 is illustrative on the position of the law. The facts of the case are quite simple. Under the old constitution of 1963, the civil service commission was vested with the power to appoint and dismiss senior officers in the civil service. The military governor of the state assumed the power and under it purported to dismiss Mr. Hart from the civil service. The officer challenged the governor’s action in a court, requesting that his dismissal by the governor be quashed by certiorari being outside the jurisdiction of the governor. When the case reached the Supreme Court, Fatayi-Williams, JSC, said:

“The power to dismiss [the appellant] as a public officer from the public service of the state or to exercise disciplinary control over him as such officer is vested by the constitution in the public service commission of the state. That being the case, it seems to us that, by referring the disciplinary aspect of the matter to the military governor for a decision as the public service commission of the Rivers State had done in the case in hand, the commission had abdicated its constitutional responsibility in the matter. There is no doubt that what the military governor did in the case in hand was ultra vires his constitutional power. This renders his order that the appellant be retired from the public service a nullity.”

It is therefore, not enough that a statute has conferred a particular power on a public functionary; it is of the essence that the recipient should be capable of exercising such power both in fact and in law.

The respondents made heavy weather on the phrase “without prejudice” to the power vested in the Governor under paragraph 2(1) Part II of 3rd Schedule. In Oxford Advanced Learner’s Dictionary 6th Edition at page 916, the expression “without prejudice” is defined to mean “without affecting any other legal matter”.

Also in Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 566, the Supreme Court per Oputa, JSC, said “without prejudice” means “not waiving or detracting from”. Therefore, the expression “without prejudice” to the powers vested on the Governor simply means that no rights or privileges of the Governor are to be considered as thereby waived or lost except in so far as may be expressly conceded by him. It appears that the respondents conveniently lost sight of paragraph 2(2) of the same provision. It provides:

“2(1) The Commission shall have power without prejudice to the powers vested in the Governor and the State Judicial Service Commission to –

(a) appoint persons to offices in the State Civil Service; and

(b) dismiss and exercise disciplinary control over persons holding such offices.

(2) The Commission shall not exercise any of its powers under sub-paragraph (1) of this paragraph in respect of such offices of heads of divisions of Ministries or departments of the Government of the State as may from time to time be designated by an order made by the Governor except after consultation with the Head of the Civil Service of the State.”

By virtue of the provisions of paragraph 2(2) quoted above the Commission shall not exercise any of its powers under sub-paragraph 1 except after consultation with the Head of the Civil Service of the State.

When considering the provisions of the constitution a court is obliged to consider the provisions as a whole. It is not enough to consider only the provisions of Section 208(1) and (2) of the 1999 Constitution as the learned counsel for the respondents did in their respondents’ brief of argument. In the case of Attorney-General, Federation vs. A. N. P. P. (2003) 15 NWLR (Pt. 844) 600, it was held that the court is obliged to read the constitutional provision as a whole. See also Asogwa v. Chukwu (2003) 4 NWLR (Pt. 811) 540. In the instant appeal the court must consider the provisions of section 208(1), 2(a) & (b), (3), (4), (5) and the proviso thereto, together. It should be noted that the powers of the Governor to appoint and to remove persons pursuant to section 208 of the 1999 Constitution is not absolute. He must have regard to the provisions of section 208(3) and (4) on the issue of appointment and subsection (5) when it comes to his power to remove persons from office. For instance, under section 208(3) it is provided that an appointment to the office of the Head of the Civil Service of the State shall not be made except from among Permanent Secretaries or equivalent rank in the civil service of any State or of the Federation. Further more, by virtue of section 208(4) the Governor in exercising his power under section 208 shall have regard to the diversity of people within the State and need to promote national unity. Now, in the exercise of power of Governor to remove persons so appointed from such offices mentioned in subsection (2), the Governor must have regard to the provisions of section 208(5) and the proviso made thereunder.

Under section 208(5) a clear distinction is made as to the category or class of officers. These are: (a) officers who hold their tenure of office at the pleasure of the Governor; and (b) civil servants or public servants who do not hold their tenure of offices at the pleasure of the Governor.

The provisions of section 208 are clear and unambiguous and therefore they must be given their natural and ordinary grammatic meaning. If the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, as the words themselves in such case best declare the intention of the legislature. See Mwana vs. U. B. N. Plc. (2003) 16 NWLR (pt. 846) 218 and Buhari vs. Obasanjo (supra) at page 412.

Section 208(5) of the 1999 Constitution provides that any appointment made pursuant to subsection 2(a) and (d) shall be at the pleasure of the governor and shall cease when the governor ceases to hold office. The officers affected are:

“(a) Secretary to the government of the State;

(d) any office on the personal staff of the Governor.”

The officers under section 208 2(b) and (c) are:

“(b) the Head of Service of the State;

(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated.”

Now, it is clear that the Head of Service of the State and Permanent Secretary (which includes the appellant) or other chief executive as aforesaid are persons who have been appointed from the public service of the Cross River State and they do not hold their tenure of office at the pleasure of the Governor and are entitled to return to the public service of the State when the Governor ceases to hold office. Bearing the above in mind it is clear that if for whatever reason the appellant is removed from office as Permanent Secretary by the Governor, he should be returned to the public service of the State in any other capacity, in any Ministry or Department of the Cross River State.

Learned counsel for the respondents stated in his brief as follows:

“We concede that the appellant started his career as a civil servant in 1976; we also submit that he ended it on 24th June 1999 as a POLITICAL APPOINTEE, a person appointed exclusively by the Governor of the State under section 208(1) of the Constitution. As such, he was subject to removal by the Governor in the same way he was appointed on 29th May 1999, i.e., by order of the Governor.”

I cannot subscribe to the submissions of the learned counsel to the respondents for the following reasons. The appellant was appointed into the civil service of Cross River State in 1976 and he was appointed a Permanent Secretary on 24/3/99 on the recommendation of the Civil Service Commission of Cross River State. This is the factual situation of the appellant. So, it is not correct to say that the appellant was appointed on 29th of May, 1999 by order of the Governor. The provisions of section 316(2) of the 1999 Constitution only deemed the appellant to be duly appointed to the office of Permanent Secretary at the coming into effect of the 1999 Constitution. The section provides:

“Any person who immediately before the date when this section comes into force holds office by virtue of any other constitution of law in force immediately before the date when this section comes into force shall be deemed to be duly appointed to that office by virtue of this Constitution or by any authority by whom appointments to that office fall to be made in pursuance of this Constitution.”

Section 316(2) of the 1999 Constitution is designed to protect persons holding public offices and to provide for continuity of service. It did not alter the position of such public officers before or after the coming into effect of the 1999 Constitution.

In Samuel Igbe v. The Governor of, Bendel State and Anor. (1983) 1 SCNLR 73, Fatayi Williams, ON at page 86 paragraphs C to E, made the following relevant and significant comments:

“I would like to indicate my support for the views put forward by Chief Williams that the provisions of section 274 of the Constitution not only make adequate provisions for legislative action required to effect a smooth transition from the old constitutional order to the new order, they also enable continuity of public offices existing before 1st October, 1979.”

The provisions of section 274 of the 1979 Constitution is similar to and identical with section 316 of the 1999 Constitution. Therefore, the comments in the above case are relevant to the facts of the case in the instant appeal.

It is not the intention of the legislator to convert a public officer into a political appointee merely because there is a change of government. The government of any country is or should be a continuing process. Even when and where a new constitution has been promulgated, special provisions are usually made to preserve continuity. A new constitution does not create a tabula rasa. It normally makes a provision to cover, protect and preserve existing laws, offices and institutions. See F. C. S. C v. Laoye (supra). This is exactly what section 316 of the 1999 Constitution has done.

Secondly, the appellant is not a political appointee because he does not hold office at the pleasure of the Governor. See section 208 and subsections (2) and (5).

Political appointees are officers who hold their tenure of office at the pleasure of Governor. This does not include civil servants or persons who have been recruited from public service of the Federation or of the State. In paragraph 3.6.3 page 6 of the respondents’ brief, learned counsel submitted as follows:

“Third, all the office holders named in section 208 belong to that species of public officers commonly known as “political appointees”. They, like commissioners, special advisers, chairpersons, and members of statutory commissions and agencies are in a class of their own, whose appointment and removal are undertaken under special rules that vary depending on the specific office.”

Again, I do not agree with the submissions of the learned counsel for the respondents. Permanent Secretaries (such as the appellant) are not like Commissioners, Special Advisers, Chairpersons or members of Statutory commissions and agencies. They are civil servants. The provisions of section 208 undoubtedly gave power to the Governor to appoint persons to hold or act in the offices to which the section apply and to remove person so appointed from any such office, but it did not stipulate the mode or procedure by which the power is to be exercised. In the case of political appointees they hold offices at the pleasure of the Governor but the same situation cannot apply to civil servants. In respect of the civil servants the legislation regulating the manner in which the power to appoint or to remove is to be exercised is to be found in the Civil Service Rules and Regulations.

Though, the Governor of a State has the power to appoint civil servants he cannot remove such civil servants without following due process stated in the Civil Service Rules and Regulations. If the Governor wants to retire a civil servant for a just cause then he must make a recommendation to that effect to the Civil Service Commission of the State which will do so in compliance with the law. Clearly it is not the intention of the legislator that under section 208(1) of the 1999 Constitution, a Governor can just retire a Permanent Secretary without any just cause. It is important to say that the days when public or civil servants are retired with immediate effect without stating any reason and in flagrant violation of the law, as it was under the Military regime, is now dead, buried and gone forever. In a democratic government where the rule of law prevails, a civil servant cannot be retired at will without complying with the Civil Service Rules and Regulations having Constitutional force and backing. See sections 197, 202 and Part II paragraph 2(2) of the 3rd Schedule to the 1999 Constitution. Presently, it is the duty of the Court to safeguard the rights and liberties of the individual and to protect him from any abuse or misuse of power. See F. C. S. C. vs. Laoye (supra) and Aiyetan vs. N. I. F. O. R. (supra).

If the Governor does not want the appellant as a Permanent Secretary he should be returned to the civil service. This is made abundantly clear under the, proviso to Section 208(5) of the 1999 Constitution which states as follows:

“Provided that where a person has been appointed from a public service of the Federation or a State, he shall be entitled to return to the public service of the Federation or of the State when the Governor ceases to hold office.”

If the appellant is to be retired compulsorily from the civil service of Cross River State, then it must be done in accordance with the Civil Service Rules and Regulations. See the cases of Federal Civil Service Commission vs. Laoye (supra); Olaniyan vs. University of Lagos (supra); Akintemi vs. Onwumechili (supra); Aiyetan vs. N. I. F. O. R. (1987) 3 NWLR (pt. 59) 48 and Iderima vs. R. S. C. S. C. (supra).

Security of tenure and right of an employee to the benefit of retirement are the most powerful inducement for entering into the civil service. See Morakinyo v. Ibadan City Council (1964) 1 All NLR 219. As stated by courts many times this country has a great reputation that its civil servants can enjoy a tenure of office to their retiring age from their probationary period if they are efficient and have good character and are not incapacitated in the functions of their office by any physical or mental infirmity. The Civil Service Rules and Regulations of Cross River State, 1975, invest in the appellant, as a civil servant, a legal status and he can only be removed properly or legally as provided under the said rules and regulations.

It is for the above reasons that I reach the conclusion that the appellant who was appointed by the Cross River State Civil Service in the established and, pensionable cadre and particularly by virtue of section 208(5) and the proviso thereto of the 1999 Constitution was not employed at the pleasure of the Governor. Although, the expression “political appointee” is not defined under the Constitution, it is clear from the provisions of section 208(5) that the expression means nothing more than the officers whose appointments are made pursuant to section 208(2) (a) and (b) who hold offices at the pleasure of the Governor and shall cease when the Governor ceases to hold office. The officers referred to above must be distinguished from persons who were appointed from the public service of the federation or the State who shall be entitled to return to the public service of the federation or the State when the Governor ceases to hold office. The appellant therefore was not a political appointee. He was to all intent and purposes a civil servant of the Cross River State Civil Service subject to the Civil Service Rules and Regulations.

Although, the learned counsel for the respondents submitted that the appellant cannot be imposed on the Governor, I do not think that this submission is applicable to the facts of this case. Since Shitta-Bay’s case, officers on pensionable cadre of our civil service whose terms and conditions of service are governed by the Civil Service Rules made under the Constitution, and therefore having a constitutional flavour, acquired a distinct status which places their employment over and above the common law relationship of master and servant. See F. C. S. C. v. Laoye (supra). Therefore, the appellant still has the legal right to remain in office.

The appellant in its statement of claim made the following claims:

“A declaration that the purported malicious, vexatious and pre-mature retirement of the plaintiff from his substantive civil service career position as Permanent Secretary was done mala fides therefore ultra vires the powers of the defendants and not in accordance with any procedure permitted by law.

An order re-instating the plaintiff to his substantive career position as Permanent Secretary in the civil service of the Cross River State.

IN THE ALTERNATIVE TO (2) ABOVE

Damages of N50 million to the plaintiff for wrongful termination of the career appointment of the plaintiff by the defendants.”

If a right has been infringed whether it is a fundamental right or a statutory right and the aggrieved party comes to the court for reinforcement of the right, it will not be given complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. It is the duty of the court to order a proper remedy. Ubi jus ibi remedium. In this case, the appellant is entitled and indeed has a legal right to remain in civil service until he retires at the age of 60 years or after rendering services for 35 years in the civil service. Having found that the retirement of the appellant was illegal, null and void he is entitled to be reinstated to his substantive career position as Permanent Secretary in the civil service of the Cross River State. See Shitta-Bay vs. Federal Public Service Commission (1981) 1 SC 40 at 62 – 64. That being the case it is unnecessary to consider his alternative claim for damages.

In the result, the two issues for determination formulated by the appellant succeed. I, therefore, find merit in this appeal and it deserves to be allowed.

Accordingly, this appeal is hereby allowed. The judgment of P. M. Ekpe, J. of the High Court of Cross River State sitting in Calabar, delivered in Suit No. C/450/99 on 16/12/05 is hereby set aside. I enter judgment for the appellant and order:

(1) That the retirement of the appellant from his substantive career position as Permanent Secretary without complying with the Civil Service Rules and Regulations of the Cross River State is ultra vires the powers of the respondents therefore it is null and void.

(2) It is hereby ordered that the appellant be reinstated to his substantive career position as Permanent Secretary in the civil service of the Cross River State.

Costs is assessed and affixed in the sum of N10,000.00 in favour of the appellant and against the respondents.

Appeal allowed.

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Other Citations: (2007)LCN/2287(CA)