IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP, HONOURABLE JUSTICE S. H. DANJIDDA
SUIT NO. NICN/YEN/56/2016
BARR. SAMUEL TAMUNOTONYE LONGJOHN ……………….CLAIMANT
1. ATTORNEY- GENERAL, RIVERS STATE
2. HEAD OF SERVICE, RIVERS STATE ……DEFENDANTS
3. CIVIL SERVICE COMMISSION, RIVERS STATE
U.B. Ubaika, Esq. for the Claimant.
H.N. Amadi, Esq. (P.S.C) M.O. J. RIVERS STATE, for the Defendants.
By a complaint dated and file on 15th March, 2016, the Claimant seeks the
following reliefs against the Defendants;
1. A declaration that the removal of the Claimant as Head of Service of Rivers State did not translate into his retirement from the Civil Service of Rivers State.
2. A declaration that the Claimant is still in the Civil Service of Rivers State.
3. That the Claimant having been appointed Head of Service from the position of Permanent Secretary with effect from 15th July 2015 when he was removed as Head of Service he reverted to his position as Permanent Secretary in the Rivers State Civil Service and entitled to payment of his salary, benefits etc of his office.
4. An order of the Honourable Court to effect payment of all outstanding salaries of Claimant and to continuously make payment until the formal exit of the Claimant from the Rivers State Civil Service.
5. An order restraining the Defendants whether by themselves or their agents from interfering with the Claimant’s employment, benefits etc pending the hearing and determination of this suit."
The Claimant filed alongside his complaint, statement of facts and other initiating processes while the Defendants joined issues with the Claimant by filing their statement of defence via leave of the court granted on 25th April 2016 and the matter proceeded to trial. At the conclusion of trial, parties filed their respective final written addresses.
As to the proceedings, the Claimant testified as CW1 by adopting his statement on oath of 15th March 2016 and tendered the following exhibits;
i. Exhibit 1- Offer of Permanent Appointment dated 20/10/1995.
ii. Exhibit 2- Confirmation of Appointment dated 26/1/1998.
iii. Exhibit 3- Appointment of Permanent Secretaries dated 15/8/1998.
iv. Exhibit 4- Appointment as Head of Service dated 20/8/2012.
v. Exhibit 5- Certified True Copy of Statutory Declaration of Age dated 11/5/2000.
CW1 was duly cross examined by counsel to the Defendants and was there after discharged as there was no Re-examination.
The Defendants also called one Barr. Patrick Enebeli who testified as DW1 by adopting his statement on oath dated 25/4/2016. DW1 was equally cross examined by counsel to the Claimant and discharged thereafter as there was no reexamination.
CASE OF THE CLAIMANT
The statement of facts of the Claimant reveal that he was employed by the Defendants as a Director of Treasury in 1995 and later confirmed. That he was also appointed a Permanent Secretary in 1998. That in recognition of his diligence and hard work, the Claimant was in 2012 appointed the Head of Service of Rivers State until 2015 when he was relieved of the appointment through public Radio announcement but he has not been served with any letter of disengagement. That after his removal, the Defendants continued to pay his monthly salary till December, 2015 when he received his last pay. The grievance of the Claimant is that upon his removal as the Head of Service, the Defendants were to redeploy him to his former position as the Permanent Secretary as he had not attained the age of retirement.
CASE OF THE DEFENDANTS
The Defendants in their joint Statement of Defence deny the claims as put up by the Claimant and state that the Claimant having taken oath of office as the Head of Service in 2012 ceased to be a Permanent Secretary and invariably a civil servant. The Defendants therefore contend that the Claimant is not entitled to any of the reliefs sought.
The Defendants’ final written address dated and filed on 19th June 2019 which was deemed properly filed and served on 15th January 2020 contains three issues for determination to wit:
1. Whether the Governor of Rivers State has the constitutional powers to appoint and remove the Claimant as head of Service.
2. Whether the Claimant held his position as the Head of Service, Rivers State at the pleasure of the Governor of Rivers State.
3. Whether the Claimant is entitled to any of the reliefs claimed in his complaint."
Counsel submits that the first issue be answered in the affirmative as the Governor of Rivers State has the constitutional powers to appoint and remove the Claimant as Head of Service, Rivers State. Counsel relies on section 208 (1) (b) of the 1999 constitution as amended.
Counsel submits further that by the provisions of section 208 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), such appointments shall be at the pleasure of the Governor and shall cease when the Governor ceases to hold office. To buttress this assertion, Counsel cited the case of Oni V. Gov. Ekiti State (2019) 5 NWLR (pt. 1664) 1.
It is contention of Counsel that the Claimant was appointed as Head of Service of Rivers State on 20th September 2012 by the then Governor of Rivers State, Rotimi Amaechi in exercise of the Governor’s constitutional powers and at the elapse of the Government of Hon. Chibuike Rotimi Amaechi on the mid night of 28th May 2015, the Claimant ceases to be the Head of Service.
It is the submission of Counsel that the Claimant ought to have gone with the then Governor as his position was held at the pleasure of the Governor. But the incumbent Governor, Chief Barr. Ezenwo Nyesom Wike left the Claimant until July 15, 2015 when the Claimant was removed.
Counsel urged the court to resolve issue 1 in favor of the Defendants.
On issue 2, counsel urged the court to answer the issue in the affirmative as by the provisions of section 208 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Governor has the powers to appoint the Claimant as Head of Service but such appointment is at the pleasure of the Governor. Therefore the cessation of the office of the Governor also brings to an end the appointment as in this case. That the Governor having the powers to appoint equally has the powers to remove hence the Claimant can be duly removed by the Governor.
Counsel urged the court to resolve the issue in favour of the Defendants.
Counsel answered issue 3 in the negative and submits that the Claimant is not entitled to any of the reliefs contained in the complaint as civil actions are determined on the preponderance of evidence. That is to say that, he who asserts has the onus to prove his assertion as required by law, otherwise his relief will not be granted. Counsel cited the cases of Nwadinoi V. M.C.C (Nig.) Ltd (2016) NWLR (pt. 1494) 427, Orianzi V. A.G. Rivers State (2017) 6 NWLR (pt. 1561) 224 and Saidi V. Ibude (2011) 20 WRN 105.
Counsel submits that the Claimant must succeed or fail on the strength of his case notwithstanding the weakness of the Defendant’s case. Counsel referred the court to the cases of Umejiko V ezenanuo (1999) NWLR (pt. 126) 253 and Kodilinye V. Mndilas Ltd (2003) 36 WRN 175, Ayanru V. Mandilas (2007) All FWLR (pt. 383) 1847, S.C>C (Nig.) Ltd V. Elemadu (2005) 7 NWLR (pt. 923) 28 andAkinyele V. Afribank Plc (2005) 41 WRN 150.
Counsel finally urged the court to resolve issue 3 in favour of the Defendants as the Claimant has failed to establish his claim by any evidence.
Claimant’s final written address is dated and filed on 27th June 2019 with a single issue distilled for determination to wit:
"Whether the removal of the Claimant as the Head of Service of Rivers State Civil Service amounts to retirement of the Claimant from service."
Counsel submits that it is undisputable from the evidence before the court that the Claimant was appointed by the Governor of Rivers State while he was serving as a Permanent Secretary and was equally removed on 15th July 2015. However, the Claimant was paid salaries up to December 2015 when it was stopped.
Counsel argues that the appointment of the Claimant as the Head of Service was pursuant to section 208 1, 2(b) and 3 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states that the Governor of a state has powers to appoint a person to the office of the Head of Service but such appointment must be from the rank of Permanent Secretaries. That the Constitution has also vested the power of removal in the same person having the power to appoint.
It is the submission of Counsel that the power to remove the Claimant from the office of the Head of Service does not translate to retirement from the Civil Service of Rivers State to warrant the stoppage of the salary of the Claimant and non- posting thereafter.
Counsel argues that the provisions of section 208 (5) of the Constitution expressly excludes the Head of Service and Permanent Secretaries from holding office at the pleasure of the Governor, Therefore the express mention of one thing excludes the other, thus a person appointed into the office of the Head of Service remains in offices at the expiration of the tenure of the appointing Governor.
Counsel equally submits that once a person is appointed to the office of the Head of Service from the rank of Permanent Secretary, he reverts to the position of a Permanent Secretary upon removal. Thus the Claimant upon removal from the office of the Head of Service on 15th July 2015, automatically reverted to the position of the Permanent Secretary and remains in the Civil Service until retirement. Citing the case of Attorney- General, Cross Rivers State V. Okon (2007) All FWLR (pt. 395) 370.
Therefore, the removal of the Claimant as the Head of Service of Rivers State can only be done in line with the provisions of the Civil Service Rules and Regulations. Citing also the case Attorney- General Rivers State V. Okon (supra) 392.
Counsel submits that there is nothing before the court to show that the Claimant who was appointed in writing via exhibit 1 was issued any letter of retirement. The implication is that the Claimant after his removal from office as Head of Service at all times remained in the Civil Service of Rivers State until 19th September 2018 when he attains the statutory age of 60 years.
Counsel relying on the case of Governor of Kwara State V. Ojibara (2007) All FWLR (pt. 348) 864urged the court to answer the sole issue in the negative and grant all the reliefs of the Claimant.
DEFENDANTS’ REPLY ON POINTS OF LAW
Counsel to the Defendants filed a reply on points of law on 2nd October 2019 in responding that the Claimant is not contending his removal as Head of Service of Rivers State but that his removal does not translate to automatic retirement as to warrant the stoppage of his salary.
It is the submission of Counsel on this ground that the law is trite that he who asserts must prove as provided under section 132 of the Evidence Act 2011.
Counsel argues that the Claimant abandoned his work both as Head of Service and as civil servant which by section 4 rule 030401 and 030402 amounts to serious misconduct to be absent from duty without leave. According to Counsel, the Claimant was paid salaries for seven months irrespective of his absence.
Counsel argues further that the Claimant has not shown any document before the court that he was dismissed or retired by the Defendants.
DECISION OF THE COURT
I have perused the submissions of the learned Counsel on behalf of the parties and carefully considered the pleadings and evidence adduced including the exhibits tendered. The issue which calls for resolution is, whether by the evidence before the court, the Claimant has made out a case to warrant a judgment of the court in his favour.
The crux of the Claimant’s case is that he was a serving permanent secretary in the Rivers State Civil Service before his elevation as the Head of Service of the Rivers State Civil Service on 19th September 2012. According to the claimant, upon his removal as the Head of service, he ought to have been redeployed to his previous rank as the permanent secretary since he had not attained the statutory retirement age of 60 years. The Defendants in contrast have contended that having taken oath of office as the Head of Service, the Claimant cannot be redeployed as a permanent secretary in the state.
It is clear from the pleadings and Exhibits before the court that the Claimant was appointed a permanent Secretary by Exhibit 3. He was also appointed the Head of Service by Exhibit 4. His appointment as the Head of Service was pursuant to Section 208(2) (b) of the 1999 Constitution as amended. However a cursory look again at the entire pleadings and evidence before the court reveals that though the Claimant was removed as the Head of Service of Rivers State Civil Service in 2015, he was not issued any letter of removal or termination and he had not attained the statutory retirement age of 60 years. Nevertheless, exhibit 5(Statutory declaration of age) shows that he attained the retirement age of 60 years on 19th September 2018 during the pendency of this action.
DW1 admitted this fact during cross-examination that the Claimant was not issued a letter of removal as the Head of Service because he had not attained the age of retirement. The law is that what is admitted requires no proof. See the cases of Phoenix Motors Ltd.V.Ojewunmi (1992) 6 NWLR (pt. 248) 501, Ajunwon V. Akanni (1993) 9 NWLR (pt.316) 182, Sufianu & Ors. V. Animashuan & Ors. (200) 14 NWLR (pt.688) 650, Pina V. Mai-Angwa (2018) LPELR-44498 (SC) and Owena Mass Transportation Co. Ltd V.Okonogbo (2018) LPELR-45221(CA)
Let me for reference and clarity purposes reproduce sections 208 (1) (2) (3) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended),
(1)Powers 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 shall 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 Service of the state;
(c) Permanent Secretary or 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 rank in the Civil Service of any state or of the Federation.
(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 of the State when the Governor ceases to hold office."
These provisions are straight forward and clear as regards appointment and removal and the tenure of office of persons so appointed as well as the post appointment status of the person. It is the law that, the principle guiding interpretation of statute is that words used must be given their natural and ordinary meaning. Where words are precise and unambiguous, no more is required to expound the words in their natural and ordinary sense. See Ahmed V. Kassim (1958) SC, NLR 58.
Similarly, in considering these provisions and any provisions of the constitution, it is the fundamental principle of interpretation that they shall not be read in isolation of the other part but rather be read as a whole. See FRN V. Osahon (2006) 2 SCNJ 348.
In the instant case, it becomes imperative for the court to consider the provisions of section 208 (1), 2 (a) & (b), (3), (5) and the proviso there to holistically.
It should be made clear that the powers of the Governor to appoint or 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 power to remove persons from office. With regards to the appointment of the Head of Service under Section 208(3), the appointment shall not be made except from among permanent secretaries or equivalent rank in the civil service of any state or of the Federation. While, in the exercise of the power of the Governor to remove persons so appointed from such offices under subsection 2, the Governor shall have regard to the provisions of section 208(5) and the proviso made there under. Under Section 208(5), a clear distinction is made as to the category of officers. There are officers who hold their office at the pleasure of the Governor and civil servants or public servants who do not hold their offices at the pleasure of the Governor. The secretary to the Government of the state and personal staff of the Governor are at the pleasure of the Governor while the Head of Service of the state and permanent secretary are persons who have been appointed from the public service of the 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. See Nawa V A. G. Cross River State (2007) LPELR - 8294(CA).
I therefore agree with the submissions of counsel to the Claimant that the provisions of section 208 of the Constitution tied only the appointment of the Secretary to the State Government and that of personal staff of the Governor to the tenure of the Governor. However the appointments of the Head of Service and Permanent Secretary were not mentioned in subsection 5 of section 208as appointments that shall cease when the Governor ceases to hold office probably because they are appointments made from those who are civil servants and have risen through the ranks and whose employment is governed by the Civil Service Rules.
It is settled principle of interpretation of statute that express mention of one thing in a statutory provision automatically excludes any other thing which otherwise would have applied by implication with regard to the same issue. See Nawa V. A.G.Cross River State (supra).
I am equally of the firm view that the employment of the Claimant as a civil servant in 1995 which culminated into his appointment to the rank of the Permanent secretary in 1998 having been an appointment by the Government of Rivers State through Exhibits 1, 2 and 3 is an employment with statutory favour and as such protected by statute. And where the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. In determining what an employment with statutory flavor means, the appellate courts have held several times that it relates to employment in the Public or Civil Service of the Federation, States or Local Governments, or agencies of government, including institutions and parastatals where in the Civil Service or Public Service rules apply or are made relevant or incorporated. See the cases of Kwara State Polytechnic Ilorin V. Shittu (2012) 41 WRN26 and University of Ilorin V. Abe (2003) FWLR (Pt.164) 267 at 278,
In view of all the above, I hold the view that the appointments of the claimant as the permanent secretary and Head of Service are not at the pleasure of the Governor as the claimant had been appointed in to the said offices of the Head of Service of the state and Permanent Secretary from the Civil Service of the State and is entitled to return to the Civil Service of the State when the Governor ceases to hold office.
Therefore, the removal of the claimant and stopping his salary and refusing to return him to his position of the Permanent secretary is null and void as the Defendants acted ultra-vires of their powers and the court will not hesitate to order for reinstatement. However, in a situation where reinstatement is not appropriate or possible, the court may award damages in lieu of reinstatement. See Olaniyan V. Unilag (No.2) (1985) NWLR (Pt.9) 599, Governor Ekiti State V.Ojo (2006) NWLR (Pt.1007)95.
In the same vein, this court cannot order reinstatement as there is evidence before the court that the employment of the Claimant has lapsed by the effluxion of time hence it would amount to an order in futility.
In the case of New Nigerian Newspapers Limited V. Mr. Felix Atoyebi (2013) NGSC 2, the Court held that where the employment of an employee has been found to have been unlawfully terminated, the employee would be entitled to what such an employee would have earned if the employment was not determined. In this instant suit, the Claimant who was appointed in September 2012 would have attained retirement age of 60 years on 19th September 2018 thus he is entitled to salaries and allowances from January 2016 to September 2018.
The Defendants have contended that they stopped paying the claimant salary because he stopped going to work. However, CW1 denied that allegation under cross-examination. I also consider that contention watery. I believe that, it is not the way to go about it. If the Defendants had that kind of allegation against the Claimant which may amount to misconduct, then disciplinary measure should have been invoked against the Claimant with a view to finding him wanting. I find that contention to be an afterthought and one not supported by any evidence and without any basis. Throughout the defence put up by the defendants, there has not been any facts averred that raised that allegation let alone prove same against the Claimant.
The law as regards the issue of payment of salaries is sacred. It is so sacrosanct that the employee is entitled to wages even during temporary incapacitation period once he is willing to work. See the case of Underwater Engineering Co. Ltd. V. Dubefon,(1996) 6 NWLR (pt.400)156. See also the case of Chemical and Non-Metallic Products Senior Staff Association V. Benue Cement Co. Plc. (2006) 5 NWLR (pt.14) 1.
In the case of UdegbunamV.Federal Capital Development Authority & 2 Ors. (2003) 10 NWLR (pt.829) 487 at 500-501, the Supreme Court held that a worker is entitled to wages that are earned and this right is automatically implied into a contract of employment.
It is therefore the duty of an employer to pay wages or salary in accordance with the terms of the contract whether expressly stated or implied to the employee.
In the case of Browning V.Crumlin Valley Colleries Ltd. 5 (1926) 1 K.B. 522; Greer J. said that an employer is under a duty to pay wages or salary to his employee where the terms of the contract say so. See case of Way V. Latilla  3 AllE .R. 759. 5 1K.B.522.
Once the duty to pay wages or salary exists, the employer is, at common law, to continue to pay such remuneration to a worker who is ready and willing to work, whether or not work is provided for the employee. See the case of Devonald V. Rosser & Sons (1906) 2 K.B.728.
It is clear from the above that It is the right of an employee to be paid his salaries monthly and such right cannot just be taken away for no just cause. In that regard, I find that the claimant in the instant case is entitled to his monthly salaries and allowances as indicated earlier.
Consequent upon the reasoning above, I order as follows;
1. That the removal of the Claimant by the Defendants as Head of Civil Service of Rivers State does not in any way translate into his retirement from civil service of Rivers State.
2. That upon the removal of the Claimant as the Head of Service of Rivers State, he returns to his position as Permanent Secretary in the Civil Service of Rivers State.
3. That non-redeployment of the claimant as the permanent secretary and stoppage of his salary before his attaining his statutory age of retirement is unlawful and illegal and the Defendants shall compute and pay to the Claimant all his outstanding salaries and allowances from January 2016 to September 2018 within 30 days of this judgment failing which it shall attract 50% interest per annum until the judgment is fully liquidated.
Judgment is entered accordingly and I make no order as to cost.
HON. JUSTICE S.H. DANJIDDA