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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE DATE: December 1, 2014 SUIT: NICN/CA/84/2013 BETWEEN INIOBONG MICHAEL GEORGE - CLAIMANT AND 1. CIVIL SERVICE COMMISSION AKWA IBOM STATE DEFENDANTS 2. ATTORNEY GENERAL OF AKWA IBOM STATE REPRESENTATION I. M. George, A Abotti, Mrs E. Adetayo for claimant. Essien E.Udom, with Chief H. Ataide, Sam Akpabio Esq for defendants. JUDGMENT The claimant filed a complaint against the defendants on May 7, 2013 seeking the following reliefs and declarations: 1. An order of this court restoring the claimant back to his post as Director in the Ministry of Justice and also all the claimant’s entitlements attaching thereto with effect from February 20th, 2013. 2. An Order for the payment of the claimant's salary from the Month of February, 2013 and all his allowances, transport allowance, rent allowances, utility allowances, journal allowances and any other benefits pertaining to the office as a Director. 3. An order restraining the defendants from intimidating, harassing, embarrassing, victimizing or further victimizing the claimant, retirement, termination or dismissal of the claimant for no just cause or without compliance with the relevant Public Service rules of Akwa Ibom State. 4. Payment of N20 Million damages for unlawful retirement, embarrassment, harassment and suffering suffered by the sudden retirement without due compliance with the law and the rules covering the claimant's employment, by the defendants. 5. In the alternative, payment of N41,800,000 for the 5 (five) years remaining in claimant's service years as a Director before due retirement. Viz: Monthly Salary after all deduction - N300,000 x 12 x 5 = N18 Million Leave allowance for 5 years for a year at N70,000 x 5 = N350,000 Robe allowance for 5 years - N150,000 a year x 5 = N750,000 Training & conferences for 5 years at N500,000 x 5 = N2,500,000 A car Practicing fees and dues N40,000 a year x 5 = N200,000 General damages = N20 Million Total N41,800,000 Declarations: 1. A declaration that the compulsory retirement of the claimant by the defendants without any query was unconstitutional, unlawful, null and void and of no effect whatsoever. 2. The so called restructure of the Ministry of Justice by the State Executive Council and consequent retirement of the claimant amongst the 19 Law officers was unlawful and void ab initio as only the Civil Service Commission of Akwa Ibom State can constitutionally and under the Public Service Rule of the Akwa Ibom State 2010 retire any officer or civil servant after due compliance with the rules guiding the service and the public service rules of Akwa Ibom State 2010. 3. The stoppage of the claimant's salary and all his entitlements from 20th day of February, 2013 when he received the said letter of retirement to that extent that the claimant is still in the employment of the defendants and entitled to all the rights, privileges and promotion due to the claimant as a civil servant in their employ is unlawful. Accompanying the complaint is the statement of facts, copies of documents to be relied upon, name of witness and witness statement on oath. The defendants’ entered appearance and filed their statement of defence, witness statement on oath and copies of documents to be relied upon on November 15, 2013. The claimant filed a reply to the statement of defence on February 3, 2014. An amended statement of defence was filed on June 11, 2014. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that he is a civil servant of Akwa Ibom State Government and is on a pensionable appointment with the defendants. He pleaded that he was born on 9th May, 1962 and attended the University of Calabar between 1982 and 1986 and was called to Nigerian Bar in March, 1988. The claimant pleaded that in 1989 he was employed as a State Counsel by the Civil Service Commission of Akwa Ibom State on pensionable appointment and was posted to the Ministry of Justice, Akwa Ibom State. He pleaded that he started duties on the 18th day of January, 1989 and was deployed to the Department of Public Prosecution as State Counsel and in year 2000, issued with an identity card which is to expire on the 2nd May, 2022. The claimant pleaded that on the 17th day of March, 1994, a notification of confirmation of his appointment was issued to him and that he rose through the ranks and was promoted to the Director position in 2010, on Salary grade Level 16 with effect from 1st January, 2008. That in December, 2008, he was awarded “The best Worker in the Department of Civil Litigation” in the Ministry of Justice, Uyo, Akwa Ibom State. The claimant pleaded that on 20th September, 2011, he was posted as a substantive Director on merit to head the Department of Public Prosecution (DPP) without any knowledge of any directive from the Governor and occupied that position until the 20th day of February, 2013 when he was prematurely retired without any query or any blame of any kind. That before this date, he had served for twenty-five years meritoriously without any blemish. The claimant pleaded that by virtue of the Public Service Rules, he was due to retire in 2017 as a Director. That he was at a loss as to why he was retired before his retirement age on the 20th February, 2013 when he received the retirement letter dated 14th February, 2013 captioned: "Reorganization Of The Ministry Of Justice And Retirement Of Officers From The State Civil Service” which was signed by the Chairman of the 1st defendant. He pleaded that he was never asked by the defendant to explain any wrong doing against him or face any panel. He averred that the defendants did not comply with Public Service Rules and he was not given a fair hearing or fair trial. He pleaded that he did not commit any offence throughout his service period. That the office of the Director of Public Prosecution is still in existence and the occupier of the office was his Deputy. The claimant stated that the Civil Service Senior Staff Association of which he was a member intervened and pleaded with the defendants to rescind their decision because he was unfairly retired but they refused. That he filed this case to avoid being caught up by Public officers Protection Law. The claimant averred that before his premature retirement he had passed all relevant examinations conducted by the Civil Service Commission (1st defendant) before promotions and was duly screened, interviewed and considered fit for the positions before promotion. That he passed the 2010/2011 Administrative/Professional Officers compulsory examinations and was elevated to salary grade level 17, step 9 in the year 2012 by a circular of the Government of Akwa Ibom State. The claimant pleaded that as a Director in the civil service, he was paid three hundred thousand Naira (N300,000.00) as his salary after the approved deductions. He averred that his emoluments also included transport allowance, accommodation allowance, entertainment, journal, hazard allowances, five domestic staff allowances on grade level 3. That he was also entitled to a car, a driver, the maintenance of the car, a yearly Robe allowance of N150,000.00, leave allowance of 10% of annual basic salary, yearly trainings and conferences. The claimant stated that in the year 2012, the 1st defendant employed 35 lawyers as State Counsel into the workforce of the 1st defendant and they were all posted to Ministry of Justice to boost the depleted manpower of the Ministry. That he was highly embarrassed and harassed by the sudden retirement without any blame and also its consequent publication in the newspapers and stoppage of his salary and all entitlement during service. That members of the Public now look at him as having been summarily and immediately retired for having committed a serious offence involving stealing/defrauding the defendants and this has seriously affected his reputation. The claimant testified as the only witness in support of his case. His evidence in chief was by witness statement on oath which he adopted and was in the exact terms of the pleadings. Under cross examination he told the court that his appointment is one with statutory flavour, that he still has five more years in service and that his retirement was unjust. The claimant informed the court that his appointment is pensionable. He told the court that he was not given a fair hearing before he was retired. He stated that the Rules for retirement was not followed and that he did not go to the Establishments Office because he was unjustly retired. The claimant told the court that the State Executive Council has no power to retire a civil servant as it is the duty of the Civil Service Commission. He said all of them affected by the retirement exercise wrote to the Governor to reconsider his position. The claimant then closed his case. The defendants’ case on the pleadings is that the 1st defendant is the employer of the claimant and was asked by the 2nd defendant to occupy the office of the Head of Department of Public Prosecution (DPP). They pleaded that claimant is over 51 years old and has been promoted by the 1st defendant over the years from the position of State Counsel I to the position of Director with effect from 1st January, 2008 and is on Salary Grade Level 16. The defendants pleaded that the claimant had full knowledge that his compulsory retirement from the service of the 1st defendant followed the decision reached by the State Executive Council to reorganize the Akwa Ibom State Ministry of Justice. The defendants pleaded that the decision to reorganize the Ministry of Justice of the State including the office of the claimant was taken at a duly constituted meeting of the State Executive Council presided over by the Executive Governor of the State. That it is within the powers of the Executive Governor of a State sitting in Council to restructure any Ministry, Department or Organ of the State for greater efficiency. The defendants pleaded that the Akwa Ibom State Executive Council had directed the Attorney General and Commissioner for Justice, to liaise with the Head of Civil Service and the Chairman Civil Service Commission to expedite action and conclude the reorganization of the Ministry of Justice and that the decision to re-organize the office of the claimant was not taken by the defendants but by the Executive Council of Akwa Ibom State. The defendants pleaded that the claimant was validly compulsorily retired from service of the 1st defendant in accordance with the relevant provisions of the Pensions Act and that the claimant was by their letter of 14th February, 2013, duly notified to contact the Department of Establishment for the computation of his benefits which legitimate entitlement would have been paid but for this action. They pleaded that the claimant’s retirement was to give effect to the decision of the State Executive Council to reorganize the Ministry of Justice and that no disciplinary measure was taken against the claimant within the contemplation of the Public Service Rules. That the claimant having appealed to the Executive Governor of Akwa Ibom State for the review of the decision of the Executive Council of the State acted in absolute bad faith by instituting this action in this Court. The defendant called one witness (DW) Pastor Aniefiok Stephen, the Director of Administration, Ministry of Justice Akwa Ibom State. His evidence in chief was by witness statement on oath which he adopted and was in the exact terms of the pleadings. Under cross-examination, DW told the court that he is in custody of records including that of the claimant and that he did not state the misconduct or gross misconduct of the claimant in his witness deposition. He told the court that the 1st defendant promoted the claimant to the position of Director. DW admitted that the claimant’s name is not in exhibit D1 and that the claimant does not have any disciplinary case. He stated that there is no rule in the Public Service Rules that requires that the claimant be retired without compliance with the Rules. DW told the court that the Public Service Rules and the Constitution guide the conditions of service of the claimant. He explained that re-organisation includes transfers, compulsory retirement and employment. DW told the court that he did not have 16 months to comply with the Public Service Rules and Constitution because he had no directive to carry out any administrative decision of the State Executive Council. DW stated that the Chairman of the 1st defendant and the 2nd defendant swore to uphold the Constitution and Public Service Rules. The defendants then closed their case. Counsel were both ordered to file their respective final addresses. The defendant’s final address is dated June 16, 2014, and filed on June 17, 2014. The claimant’s final address is dated June 30, 2014 and filed on July 3, 2014. The defendant’s reply on point of law is dated August 4, 2014 and filed the same day. The learned SAN submitted the following issues for determination: 1. Whether the Akwa Ibom State Executive Council has the power to reorganize its Ministries; 2. Whether the Akwa Ibom State Executive Council acted within its executive powers in ordering the retirement of the claimant as part of its reorganization of the State Ministry of Justice; 3. Whether this Honourable Court has jurisdiction to inquire into and/or quash a policy decision of the Akwa Ibom State Executive Council; 4. Whether the claimant is entitled to the reliefs sought in this suit He referred to Section 5(2) of the 1999 Constitution as amended and submitted that it vests the Executive powers of a State in Nigeria in the Governor of that State and in this regard, the existence of the Executive Council of a State therefore derives Constitutional force from the provision of Section 5(2) of the Constitution. He submitted that it is the prerogative of the Executive Governor of a State to organize and reorganize the administration of the Government of the State into various ministries and departments as may be required for the effective discharge of the policy decisions of the State and that this power may either be exercised directly or through the instrumentality of the State Executive Council. It was his contention that the extent of the executive powers of the Governor of a State to reorganize Ministries and Departments in the State is seen in Section 208(2)(c) of the 1999 Constitution. Learned counsel argued that Exhibit DW1which is the extract of the Minutes of the Meeting of the Executive Council shows that the retirement of the claimant was ordered by the Executive Council as part of the reorganization of the Ministry of Justice. It was his submission that the reorganization of Ministries and the compulsory retirement of any officer in the service of a State is within the contemplation of the Pension Act, Cap. P4 Laws of the Federation of Nigeria, which regulates the employment of the claimant. Section 3(1)(c) of the Pensions Act provides as follows: “3(1) No pension or gratuity shall be granted under this Act to any officer except on his retirement from the public service in any of the following circumstances that is- (c) On compulsory retirement for the purpose of facilitating improvements in the organization of the officer’s department or ministry so that greater efficiency or economy may be effected.” He submitted that the powers vested in the State Executive Council to reorganize the Ministries and retire public officers under the 1999 Constitution and the Pensions Act are essentially prerogative powers meant to facilitate the execution of state policies and enhance governance. Counsel further submitted that the State Executive Council does not derive its prerogative powers from the Public Service Rules and therefore the suggestion that the decision of the Akwa Ibom State Executive Council should conform to the provisions of the Akwa Ibom State Public Service Rules 2010 is clearly misconceived. He argued that the State Executive Council is not constituted as a judicial or quasi-judicial body and as such its decision to reorganize the Ministry of Justice and retire the claimant was entirely a policy decision taken in the public interest and was neither a disciplinary action nor a decision based on any allegation of misconduct on the part of the claimant. He submitted that the Akwa Ibom State Executive Council acted within the scope of its executive powers in ordering the retirement of the claimant as part of its reorganization of the State Ministry of Justice. Learned counsel argued that the main relief sought by the claimant which is in the nature of certiorari. He argued that the word “nullify” is synonymous with the word “quash” citing M.H.U.N. v. Min Labour & Prod. [2005] 17 NWLR (Pt. 953) 12 at 150; and that the Akwa Ibom State Executive Council in taking a decision to reorganize the Ministry of Justice to facilitate improvements in the Ministry for greater efficiency did not in the circumstance act in judicial or quasi-judicial capacity. He submitted that the court has no jurisdiction to inquire into and/or quash a policy decision of the Akwa Ibom State Executive Council to reorganize its Ministry citing Nwaoboshi v. MILAD Delta State [2003] 11 NWLR (Pt. 831) 305 at pages 318-320, paragraphs D-F. On whether the claimant is entitled to the reliefs sought, learned counsel submitted that the claimant’s first relief is the main relief on which the grant of other reliefs rests. That since it is not within the jurisdiction of this Court to grant the first relief the claimant is not entitled to the grant of the other reliefs citing Alhaji Sheu Abdul Gafar v The Government of Kwara State And Others [2007] 4 NWLR (Pt 1024) Page 375 at 398-399, Paras. He submitted further that the claimant has failed to adduce any evidence in support of the alternative reliefs sought in his claim and that, there is no provision anywhere in the Public Service Rules, Pension Act or any other law that could support the alternative relief claimed in the circumstance of this case citing Ajakaiye v Idehai [1948] 8 NWLR (Pt 364) 504 at 525, Ohaji v. Unamka [2011] 4 NWLR (Pt 1236) 148 at 164, Paragraphs C-F. He argued that Section 3(c) of the Pensions Act CAP, P4 Laws of the Federation of Nigeria, 2004 clearly provides for the payment of pension and gratuity on the compulsory retirement of a public servant for the purpose of facilitating improvements in the organization of the officer’s department or ministry so that greater efficiency or economy may be effected. He argued that the defendants acted lawfully in retiring the claimant as part of the reorganization of the State Ministry of Justice and therefore are not liable for any damages to the claimant. Learned Counsel to the claimant submitted the following issues for determination: 1. Whether the civil rights and obligations of the claimant were breached when he was retired without any misconduct or gross misconduct and also denied fair hearing. 2. Whether the Policy Directive of State Executive Council of Akwa Ibom State in Exhibit D overrides the constitutional powers of the Civil Service Commission in matters of Discipline of a civil servant. 3. Whether the Akwa Ibom State Executive Council has the power to reorganize its ministries and also acted within its Executive Powers in ordering the retirement of the claimant as part of its reorganization of the State Ministry of Justice. 4. Whether this Honourable Court has jurisdiction to inquire into and/or quash a policy decision of the Akwa Ibom State Executive Council. 5. Whether the claimant is entitled to reliefs sought in this suit. He submitted that the there is no evidence adduced to show that the claimant was incompetent, and not capable of discharging his duties. That failure to tender the records of service of the claimant and any panel report to show that the reorganisation exercise was fairly done without bias and victimization of perceived enemies, manifestly show that the claimant was not only denied fair hearing but retired mala fide. He submitted that compulsory retirement with immediate effect connotes and imputes wrongdoing and it is a form of disciplinary measure. He referred to Section 197(a) and Section 2 of Part 11 of the Schedule of the 1999 Constitution of the Federal Republic of Nigeria. Learned counsel submitted that the power to suspend a person from his employment or to retire a person from service prematurely is a quasi judicial act as it involves investigation and a determination of whether the officer is guilty or not and as such amenable to certiorari citing Odemuyiwa v. Nigerian Railway Corporation [1973] 3 UILR (Pt.1) 94 at 102, Fatomo v Lagos State Public Service Commission [1977] 55sc at 76, Judicial Service Commission of Cross River State (JSCCRS) v. Dr Young [2013] I JMLR 67, C in C of Armed Forces v. Public Service Commission, Mid-West & Anr 1974 NSCC (VOL.9) 509 at 531. He further submitted that the claimant’s employment is one of statutory flavour and any action taken against that employment in breach of the enabling statutes governing the employment is null and void. See Iderima v. RESSCC [2005] 16 NWLR (Pt. 951) 378, Bamboye v. University of Ilorin [1999] 10 NWLR (Pt. 6220) 290. He argued that public servants are expected to enjoy tenure of office to their retiring age and can be validly removed from service if the procedures prescribed by law and public service rules are followed. He submitted that the defendants breached the Public Service Rules and Section 36 (1) of the 1999 Constitution referring to Bamgboye v. University of Ilorin [1999] 10 NWLR (pt. 622) 270, Olufeagba v. Abdul Raheem [2004] 40 NSCQR 684 at page 724, Victino Fixed Odds v. Ojo [2010] 412 NSCQR page 1994, UBN v. Astra Builders [2010] 41.2 NSCQR page 1023. He referred to Section 197 and Section 2 (1) Part II of the 1999 Constitution and submitted that the Civil Service Commission is given independence in its functions especially on discipline and appointment. He submitted that the directive of Akwa Ibom State Executive Council cannot override the powers of the 1st Defendant to act as quasi body and also give the claimant a fair hearing. He argued that the directive did not override the duties of the 1st Defendant and the 1st Defendant’s failure to properly perform its duties renders the retirement a nullity. Learned counsel submitted that the Governor is not vested with absolute powers as the Constitution does not create executive absolutism. He submitted that Section 202 of the 1999 Constitution empowers the 1st defendant to act independently and not be subject to the direction and control of any other authority or person. He submitted that the Pensions Act can only come to play where the claimant is properly retired according to the law and rules governing his employment. He submitted, that there is no prerogative power of the Governor to retire a Civil Servant rather the power is vested in the State Civil Service Commission and urged the court to set aside the retirement citing Taiwo v. Adebboro [2011] 46 NSCQR 83 at 90. Learned counsel submitted that the Pension law, section 3 (1) (c) of the laws of the Federation Cap P4 has been updated by the laws of the Federation of Nigeria 2004. He submitted that the State Executive Council or the Governor has powers to make sound policy decisions but where the policy decision is made with the aim of seriously violating the civil right and obligations of the citizens, the court will intervene citing Nwoaga v. Aku (Supra) and Taiwo v. Adegboro supra. He submitted that the court will not interfere with policy decision of the Executive, when it is taken decently and excellently executed but will entertain a suit if it was taken to violate the provisions of the 1999 Constitution and also usurp the functions and duties of other statutory boodles like the Civil Service Commission to order retirement of the claimant without compliance with the Public Service rules and the Constitution. He submitted that this court has jurisdiction to quash the policy decision referring to University of Ilorin v. Rashcedat Adesina [2014] IPELR 230 19 and urged the court to grant the claims of the claimant. Replying on point of law, learned SAN submitted that the Commission cannot make rules to bind the Executive Council of the State on issues bordering on the reorganization of the Ministries and retirement of officers pursuant to such reorganization, as this would be clearly prejudicial to the powers of the Governor of the State. He submitted that in Section 2(1)(b) the Commission's disciplinary procedure may only cover the dismissal and exercise of disciplinary control over the persons holding public office. He submitted that the Constitutional and Statutory power to reorganize the Ministries and retire officers pursuant to such reorganization resides in the Governor and not the State Civil Service Commission. It was his contention that the Pension Reform Act, 2014 which repealed the Pension Act 1990 did not affect the action taken by the Governor and Executive Council of Akwa Ibom State to reorganize the State Ministry of Justice and retire the claimant. That rather, the action was expressly preserved by Section 117(3) of the Pension Act 2014. He submitted that the facts and issues in all judicial authorities cited by the claimant are clearly distinguishable from the present case as they border on misconduct or other disciplinary issues and have nothing to do with reorganization as in this case. I have carefully considered the processes filed, the evidence led, written submissions and authorities. The issues for determination in this judgement are: (i) whether or not this Court has jurisdiction to inquire into and/or quash the policy decision of the Akwa Ibom State Executive Council; (ii) whether the claimant’s appointment with the defendants is one with statutory flavour; (iii) whether the defendants complied with the law in retiring the claimant from service; (iv) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. A court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In order to determine whether a court has jurisdiction to entertain a matter, the relevant provisions of the Statute setting up the court must be examined to see the nature and scope of its jurisdiction and powers and whether or not the matter falls within its powers. Furthermore, the court is required to look at the complaint and statement of facts as it is the claimant’s case that determines the jurisdiction of the court. The jurisdiction of this Court is governed both by Section 7 of the National Industrial Court Act 2006 and Section 254C(1)(a) to (m), (2), (3), (4) & (5) of the 1999 Constitution as amended which confers an expanded jurisdiction. The claimant’s case is for unlawful interference with his contract of employment and premature retirement from the service of the 1st defendant. This falls squarely within the purview of the jurisdiction of this Court. The nature of the powers of this Court are contained in Sections 16, 17, 18 and 19 of the National Industrial Court Act 2006. Specifically Section 17 (1) and (2) provides that: 17---(1) The Court shall have the power to make an order of mandamus requiring any act to be done or an order of prohibition prohibiting any proceedings, cause or matter, or an order of certiorari removing any proceedings, cause or matter into the Court for any purpose. (2) The power conferred on the Court by this section to make an order of mandamus, prohibition or certiorari may be exercised notwithstanding that the order is made against an officer or authority of the Federal, State or Local Government as such. There is no dispute that the Executive Powers of a State are vested in the Governor as provided in Section 5 (2) (a) and (b) of the 1999 Constitution reproduced as follows: Subject to the provisions of this Constitution, the executive powers of a State: (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the state; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws. It is pertinent at this juncture to also refer to section 6(6)(b) of the 1999 Constitution: 6. The Judicial powers vested in accordance with the foregoing provisions of this section (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; It is very clear from Section 5 (2) (a) & (b) that the Governor’s executive powers are not absolute. While the Governor is empowered to make policy decisions together with the Executive Council, and in this instance to re-organise the Ministry of Justice, the policy decision and its execution must be within the confines of the law for it to be operative. See Comptroller Abdullahi Gusau v Comptroller General of Customs [2014] LPELR-23367 (CA/A/248/2013 11th July 2014), P.H.M.B. v Ejitagha [2000] 11 NWLR (Pt 677) 154. On the other hand, Section 6(6)(b) of the Constitution is not made subject to any provision of the Constitution like Section 5(2) is. The critical question to therefore resolve applying Section 6(6)(b) is whether the rights of the claimant have been affected by the policy adopted by the Governor in exercise of his powers under Section 5 of the Constitution. On the pleadings, I find that the rights of the claimant are in issue as having been affected. I therefore hold that this Court has jurisdiction to entertain this action and to inquire into and/or quash a policy decision of both the Akwa Ibom State Executive Council and the defendants where such a policy decision and/or executive action is taken outside the provisions of the law and adversely affects the employment rights of the claimant. See Akibu v Oduntan [1992] 2 NWLR (Pt 222) 210 at 228, Shitta-Bey v Federal Civil Service Commission [1981] 1 SC 40. The claimant has testified that he was appointed as a state counsel by the 1st defendant into the pensionable establishment of the civil service on January 18, 1989; that his last promotion to the position of Director on Salary Grade Level 16 took effect from 1st January 2008 and he was posted on 20th September 2011 to head the Department of Public Prosecution. These facts are admitted by the defendants. The claimant has placed before the court all the required component pieces of evidence relating to his appointment, status, service details and the applicable operative staff conditions of service the Akwa Ibom Public Service Rules 2010 which regulates his appointment. The Public Service Rules have been made pursuant to the powers conferred by the provisions of Sections 197 (1) (a), 204 (1) and the Third Schedule, Part II Paragraph 2 (1) (a) & (b) of the 1999 Constitution as amended. They are Regulations deriving from the provisions of the 1999 Constitution as amended. I find that the claimant’s contract of service is governed wholly by the Regulations deriving from constitutional and statutory provisions. I hold that his employment is one with statutory flavour and he does not hold office at the pleasure of the defendants. See Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 599, Iderima v Rivers State Civil Service Commission [2005] 16 NWLR (Pt 951) 378. The claimant has complained that he was prematurely retired by the defendants in breach of the Public Service Rules and without being given a fair hearing. His letter of retirement is reproduced as follows: GOVERNMENT OF AKWA IBOM STATE OF NIGERIA Our Ref:AKC/S/0072/S.3/Vol II/420 Civil Service Commission 14th February, 2013 Iniobong Michael George Director u.f.s. The Attorney-General/Commissioner Ministry of Justice, Uyo. Sir/Madam, REORGANIZATION OF THE MINISTRY OF JUSTICE AND RETIREMENT OF OFFICERS FROM THE STATE CIVIL SERVICE The State Executive Council has approved reorganization of the State Ministry of Justice. Arising from this, you are retired from the service with immediate effect. Government appreciates your past services and wishes you success in all your future endeavours. Please, contact the Department of Establishments for the computation of your retirement benefits. Copies of this letter are being endorsed to the Head of Civil Service, the Permanent Secretary, Governor’s Office, the Permanent Secretary, Department of Establishments, Attorney-General/Commissioner for Justice, Accountant General, State Auditor-General for information and necessary action. Chief J.J.Obot Chairman. Now, DW testified that the claimant’s compulsory retirement was not as a result of any disciplinary measure as contemplated in the Public Service Rules but was to give effect to the decision of the State Executive Council; and that it was validly carried out in accordance with the relevant provisions of the Pension Act. Learned counsel to the defendants has also made this submission in paragraph 4.2.7 of the address as follows: “the compulsory retirement of any officer in the service of a State is within the contemplation of the Pensions Act, Cap P4, Laws of the Federation of Nigeria, which regulates the employment of the claimant”. However, the Pension Reform Act 2004 as amended in 2014 is the existing law and it does not regulate the employment of the claimant. It establishes the contributory pension scheme for employees in the Public Service and the Private Sector. Furthermore, section 3 (1) (c) reproduced by defence counsel in the address does not exist in the Pension Reform Act 2004. The State Civil Service Commission is established by Section 197 of the 1999 Constitution as amended and by the provisions of Part II Paragraph 2 (1) (a) & (b) of the Third Schedule (reproduced below): 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. The law is settled that in a contract of employment, the conditions of service rules and regulations are binding on both the employee and employer equally. See D.A.Nig Alep Ltd v Oluwadare [2007] 7 NWLR (Pt 1033) 336. The 1st defendant is the appointing authority with powers also to determine the appointments of officers. The defendants have a duty to comply with the Public Service Rules regarding all aspects of an Officers service. The extracts from conclusions of the Akwa Ibom State Executive Council Exhibit DW1 are reproduced as follows: AGENDA ITEM NO. 5: REORGANIZATION OF MINISTRY OF JUSTICE. DEPLOYMENT OF LEGAL OFFICERS TO LEGAL DESKS IN MINISTRIES AND PARASTATALS AS DEPARTMENTAL LEGAL ADVISERS FROM THE MINISTRY OF JUSTICE AND REQUEST FOR APPROVAL TO RECRUIT 30 (THIRTY) LEGAL OFFICERS OF VARYING GRADES INTO THE AKWA IBOM STATE CIVIL SERVICE FOR DEPLOYMENT TO THE MINISTRY OF JUSTICE. 35. Reacting to the issues raised, His Excellency, the Governor directed the Attorney-General and Commissioner for Justice to liaise with the Head of Civil Service and the Chairman, Civil Service Commission to expedite action and conclude the immediate re-organization of the Ministry of Justice. 36. His Excellency the Governor also directed the Attorney-General and Commissioner for Justice to liaise with the Head of Civil Service to ensure the deployment of a lawyer to the State Council of Chiefs to assume duties as the Secretary on Monday 1st August 2011. 37. On the information brought to the attention of Council that in the time past private lawyers were appointed as Government External Counsels without the Governor’s approval, His Excellency, the Governor directed the Attorney-General and Commissioner for justice to always obtain approval before appointing such External Counsels. CONCLUSION 38. His Excellency, the Governor-in-Council approved iv. immediate re-organization of the Ministry of Justice; v. the deployment of Legal Officers to Ministries and Parastatals from the Ministry of Justice to give legal opinion, vet legal documents and collate documents; vi. the deployment of Legal Officers to Ministries/Parastatals from the Ministry of Justice to prepare briefs and do such things as would aid in the speedy defence of litigation of departments; vii. the appointment of (30) Lawyers of varying degrees of experience into Akwa Ibom State Civil Service for deployment as Legal Officers in the Ministry of Justice. The Executive Council decisions and directives as contained in the extracts of minutes of the State Executive Council are specific and unambiguous. The document speaks for itself. See Ogundele v Agiri [2009] 18 NWLR (Pt 1173) 219. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. Where specific things or persons are mentioned, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449. The re-organisation was directed as a general need; and the nature of re-organisation was then amplified in the ensuing paragraphs i.e. to bring in more legal officers, to post legal officers to Ministries and Departments/Parastatals, and to stop the practice of firming out legal briefs to external solicitors without the Governor’s approval first had and received. This is the true import of the re-organisation the Executive Council approved. The re-organisation was not to retire lawyers but to bring in more lawyers so that all Ministries and Departments/Parastatals can be served with legal officers each. Within this framework then, it was a wrong interpretation for the defendants to read the extract as authorizing the retirement of lawyers in the State Ministry of Justice. You cannot say you are re-organising by retiring lawyers in one breath and then in the second breath say that more lawyers be employed to service the same system within which you are retiring others who have not reached retirement age or committed any wrongdoing. In this wise, it was accordingly wrong to retire the claimant using the extract as the justifying instrument. This to my mind represents the true essence of this case. I find from the extract of the minutes that the Executive Council did not decide or approve the compulsory retirement of the claimant or any other lawyer in the Ministry of Justice. I hold that the Akwa Ibom State Executive Council presided over by the Executive Governor did not decide or approve the compulsory retirement of the claimant. The Executive Council’s directive to the Attorney-General was to liaise with the Head of the Civil Service and the Chairman of the Civil Service Commission. The Civil Service Commission, is the body empowered to appoint, discipline and dismiss officers in the Civil Service. The letter of compulsory retirement was written by it and signed by its Chairman. It was therefore its, decision to compulsorily retire the claimant; and it is expected to do this within the confines of the Public Service Rules. The reason given for the claimant’s retirement from service with immediate effect is the re-organisation of the Ministry of Justice. I find that re-organisation of a Ministry is not a ground for compulsory retirement in the Akwa Ibom State Public Service Rules 2010 and I so hold. Compulsory retirement is provided for in Rule 020709 as follows: (i) The compulsory retirement for all grades in the Service shall be 60 years of age or 35 years of service whichever is earlier. (ii) Notwithstanding sub-section (i) above, (a) a Director shall compulsorily retire upon serving ten (10) years in the post: and (b) a Permanent Secretary shall hold office for a maximum term of eight (8) years and no more. The claimant does not belong to any of the categories mentioned in Rule 020709. In other wards, he has not attained the age of 60 years or spent 35 years in service, neither has he served ten years as a Director. The claimant has testified that he has never faced any disciplinary measures and was not informed of any allegation against him to warrant his retirement. DW has admitted that he was not retired based on any disciplinary measures. Applying the legal test of the reasonable man, the compulsory retirement with immediate effect of the claimant who is a career civil servant, suggests a disciplinary measure which imputes misconduct or wrongdoing by him; he is therefore entitled to a fair hearing and I so hold. I find that the claimant was not qualified for compulsory retirement on 14th February 2014 when the letter was written having not attained the retirement age of 60 years or 35 years in service; and that he was compulsorily retired by the defendants for no reason and in blatant disregard of the Public Service Rules. The claimant is a career civil servant of the established and pensionable cadre and is guaranteed security of tenure by the Public Service Rules. However, this does not translate to a fixed term contract of employment. This is because either party relying on, and applying the Public Service Rules may bring the employment contract to an end before the attainment of 60 years or 35 years in service. I find that the defendants have acted judicially in the sense that they determined the civil rights of the claimant to remain in employment in the civil service without him being given a fair hearing as enjoined by Section 36 (1) of the 1999 Constitution and without complying with the provisions of Rule 020709 and Chapter 4 Rules 040431 to 04035. The 1st defendant must carry out its activities in line with its governing laws, rules, and procedures. The rules regulating retirement and discipline must be strictly complied with, the claimant’s employment being one with statutory flavour. Therefore, in the execution of the policy decision to re-organise the Ministry of Justice, the exercise of the defendants’ powers and conduct are subject to the control of this court by means of certiorari. See J.S.C. Cross River State v Dr Asari Young [2013] 11 NWLR (Pt 1364) 1. I hold that the claimant’s compulsory retirement by the defendants’ is unlawful, null and void and of no effect. The letter of compulsory retirement dated 14th February 2013 is hereby nullified. The claimant is entitled to automatic reinstatement. He is reinstated into the Civil Service immediately as Director (Legal) with all the rights and privileges he is entitled to as a Grade Level 16 Officer and with no loss of seniority. The claimant is entitled to all his salaries and allowances from March 2013. See Shitta-Bey v Federal Public Service Commission supra, Iderima v Rivers State Civil Service Commission supra, Olatunbosun v NISER Council [1983] 3 NWLR (Pt 80) 25. For all the reasons given above, I hereby declare and make the following orders: 1. The compulsory retirement of the claimant without any query is unconstitutional, null and void and of no effect. The defendants’ letter of compulsory retirement dated 14th February 2013 written to the claimant is hereby nullified. 2. The Civil Service Commission, is the body empowered to retire officers in the civil service after due compliance with the Public Service Rules of Akwa Ibom State. 3. The claimant is reinstated into the civil service immediately as Director (Legal) with all the attendant rights and privileges of his Grade Level and with no loss of seniority. 4. The defendants’ are ordered to immediately release and pay the claimant his salaries, emoluments/allowances and other entitlements due to him from February 2013. 5. The defendants are restrained from harassing, embarrassing and victimizing the claimant as a result of this action. 6. Costs of N50,000.00 to be paid to the claimant by the defendants. Judgement is entered accordingly. --------------------------------------- Hon. Justice O.A.Obaseki-Osaghae