IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON WEDNESDAY 7TH DAY OF JULY, 2021
BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA O. ADENIYI
SUIT NO: NICN/KD/22/2020
1. ABUBAKAR MUSTAPHA
2. HABILA D. KYONG
3. AKILA DUTSE BUNGWON
4. HANNATU I. UGAH
5. NATHANIEL K. HAYAB
6. ALISABATU DADA ONAZI
7. HARUNA Y. SAEED
8. ISHAKU K. SHEKARI
9. DENNIS A. WAHAL
10. DR. MADINATU SHEHU I. CLAIMANTS
11. ABDUL – RAHMAN MAHMUD
12. FELIX MUSA BILLY
13. SULEIMAN SAMBO
14. ADAMU ATAMA
15. AHMED ABDU ZARIA
16. JOSHUA GAMBO GARBA
17. LADI EDWARD PATI
18. MARKUS H. BABA
19. SANI ALIYU KUDAN
20. YAU GARBA JUMARE
21. LAWAL M. MUSA
23. BAGU JOHN WOJE
24. IBRAHIM JAMO
25. DANLADI DAUDA SANDA
26. LIMAN IYAL ADAMU
27. HAUWA SANI DANGAJI
28. SHAFIU IBRAHIM
29. HARUNA MARUMU
30. JUMMAI AISHA UMAR
31. BELLO MUHAMMAD RIGACHIKUN
32. BENJAMIN NWAYA BAGAIYA
33. IBRAHIM BALARABE MUSA
34. ABUBAKAR S. ABDULLAHI
35. JAAFARU SAIDU CLAIMANTS
36. TIJJANI AHMED MUSA
37. PETER KURE BAKAM
38. AMINU SHEHU LERE
39. NAFISATU N. BABAJO
40. HAMZA A. IBRAHIM
41. NUHU AMINU BAMALLI
42. ARC. JOSIAH G. DZINGINA
43. RAKIYA MUSA
44. PAULINA M. HASSAN
45. WAJE G. YAYOCK
46. BULUS DOGARA EMISHE
47. SHAABAN ABUBAKAR
48. IBRAHIM L. IBRAHIM
49. LAWAL UMAR MAYERE
50. ALH. UMARU YUNUSA MUH’D.
51. SABO KABURUK
52. JULIUS J. A. KAGAI
53. MUHAMMAD TANKO SOBA
54. E. B. YERO
55. SHEHU MOHAMMED BAMBALE
56. SAIDU A. KAKANGI
57. TIJJANI UMAR
58. RUTH CLARA SAMAILA
59. AUWALU ALIYU CLAIMANTS
60. BALARABE SHEHU KUDAN
61. HAJIYA SAFIYA TUKUR
62. ALH. SALISU HALIDU
63. BELLO SULE
64. BALARABE IDRIS JIGO
65. DANBABA CHIROMA KWASAM
66. MR. FRANK Y. AKOS
67. BULUS JAMES
68. TANIMU JIBRIN JEMA’A
69. ABDULLAHI AHMAD
70. INUWA K. BAHAGO
(Suing for themselves and on behalf
of all Heads of Service and Permanent
Secretaries who have Retired from
the Kaduna State Public Service by 31st
1. THE GOVERNOR OF KADUNA STATE
2. ATTORNEY – GENERAL OF KADUNA STATE DEFENDANTS
J U D G M E N T
As a starting point, I should remark that this judgement was initially slated for 03/06/ 2021 but was further adjourned till today due to the industrial the prolonged strike of the Judiciary Staff Union of Nigeria (JUSUN).
The Claimants are retired public servants of Kaduna State. As retirees, they claim that they are entitled to 100% of total emolument for life as monthly pension from their various dates of retirement as computed by the Kaduna State Pension Board.
The Claimants grouse is that by a circular issued by the Permanent Secretary (Establishment), the Kaduna State Government categorised retired Heads of Service and Permanent Secretaries as political appointees who are not subject to compulsory retirement at the age of 60 years or completion of 35 years in service and that they are not entitled to 100% of their annual salary for life as pension.
The Claimants contend that the Kaduna State Pension Bureau had produced a table of summary of retired permanent secretaries by which reductions were effected to their monthly pension.
The Claimants’ further contend that the Defendants did not yield to the demand made by a letter written by their solicitors for the reversal of the reduction of their monthly pension.
2. Being thereby aggrieved by the actions of the Defendants, the Claimants instituted the present action by Originating Summons filed in this Court on 20/05/2020, whereby they prayed the Court for the determination of the questions set out as follows:
1. Whether by a construction of the clear and unambiguous provision of inter-alia the entirety of Section 210 of the 1999 Constitution (as amended) and the provision of the Kaduna State Pension Reform Law 2016, the Claimants’ right to pension being retired officers in the public service of Kaduna State is not guaranteed and protected.
2. Whether the Defendants can validly legislate retrospectively to derogate from the Claimants’ vested right to enjoyment of pension in the manner provided upon their retirement from public service of Kaduna State to their disadvantage without the concurrence/consent of the Claimants.
3. Whether the Kaduna State Government circular duly signed on behalf of the Head of Service of Kaduna State can validly operate in a manner as to stripped (sic) the Claimants of their status as retired public servants in the public service of Kaduna State and to now convert them to political officer holders (sic) so many years after their retirement from the public service of Kaduna State upon the attainment of the mandatory sixty (60) years for retirement, thirty-five (35) years in service and/or eight (8) years in the rank of permanent secretaries.
4. Whether the Defendants’ unilateral reduction of the Claimants’ monthly pension is not a violation of the spirit and later (sic) of the provision of Section 210 (3) of the 1999 Constitution (as amended) and the Kaduna Pension Reform Law, 2016.
3. Upon the determination of the questions set out in the foregoing, the Claimants thereby claimed against the Defendants the reliefs set out as follows:
1. A Declaration that the Claimants’ right to pension as retired public servants in the public service of Kaduna State is guaranteed and protected by the provisions of Section 210 of the 1999 Constitution (as amended) and the provisions of the Kaduna State Pension Reform Law, 2016.
2. A Declaration that the Claimants are retired public servants in the public service of Kaduna State and the Defendants are from their conduct in the entire circumstances of the suit estopped from asserting otherwise.
3. A Declaration that the Defendants lack the vires to legislate/act retrospectively in a manner that purports to derogate from the Claimants enjoyment of their pension right to their disadvantage without their concurrence.
4. A Declaration that the Defendants purported reduction of the Claimants’ monthly pension to their disadvantage is unconstitutional, ultra vires the Defendant and therefore null and void ab initio.
5. An Order directing the Defendants to pay to the Claimants the difference in their monthly pension resultant from the Defendants unlawful deductions from the Claimants’ monthly pension which commenced in the month of March, 2020.
6. An Order of perpetual injunction restraining the Defendants whether by themselves, agents, officers, successors, agencies, parastatals, commissions etc whomsoever and howsoever otherwise from acting in any manner whatsoever prejudicial to the Claimants’ enjoyment of their pension rights as retired public servants in the public service of Kaduna State.
4. The Defendants opposed the Summons by filing a Joint Counter - Affidavit deemed properly filed on 05/03/2021, whereby they denied the entirety of the Claimants’ claims. The Claimants did not file a Reply on Points of Law.
4. I have proceeded to appraise the facts deposed by the Claimants as well as those deposed in opposition by the Defendants. The Claimants deposed that they retired as public servants from the public service of Kaduna State having attained the ranks of Heads of Service and Permanent Secretaries.
The Claimants further deposed that upon retirement, the 2nd Claimant was served with notification of cessation of appointment and the records of his service in the public service till retirement; that the documents similar to those served on the 2nd Claimant were served on all the Claimants at retirement and that their retirement benefits were prepared by the Kaduna State Pension Board.
5. The Claimants deposed further that they had made withdrawals from their monthly pension until the Permanent Secretary (Establishment) of Kaduna State issued a circular stating that retired Heads of Service and Permanent Secretaries are categorized as political appointees who are not subject to compulsory retirement at the age of 60 years or 35 years in service and therefore not entitled to 100% of their annual salary for life as pension.
The Claimants further deposed that in March 2020, they discovered that their monthly pension payments had been drastically reduced and that upon their discovery, they instructed their solicitors to write a letter of demand for the reversal of the reduction of their pension. The Claimants deposed further that the Defendants admitted in the reply to the letter of demand that the Claimants’ pension was 100%, but attempted to rationalize the reduction in the payment of the Claimants’ pension. The Claimants finally urged the Court to grant their claims.
5. In the Counter-Affidavit to oppose the Originating Summons, on behalf of the Defendants, one Nasiru Abdu Banki, the Director of Establishments in the Office of Head of Service, Kaduna State, denied the totality of the Claimants’ claim. He deposed inter alia, that as retired public servants of Kaduna State, the Claimants are pensioners but that the career of a public servant terminates at the rank of a Director as captured in the scheme of service of Kaduna State; that the Offices the Claimants occupied were political offices tenured to a maximum of eight (8) years and that the Claimants are political appointees and not employees. The Defendants contended that the positions with which the Claimants retired from are not subject to compulsory retirement upon completion of thirty-five (35) years of service or upon attaining the age of sixty (60) years.
It is further deposed that the Defendants review of the Claimants’ pension was based on the issuance of the circular whereby the Claimants were considered as political appointees and that the pension was calculated based on the Claimants’ last civil service grade prior to their political appointments as Heads of Service, Permanent Secretaries and Directors-General. The Defendants urged the Court to dismiss the Claimants’ case.
6. In the address filed to support the Originating Summons, the Claimants learned counsel, Samuel Atung, Esq., adopted the questions posed for determination in the Originating Summons as the issues for determination.
In the opinion of the Defendants’ learned counsel, H. D. Bijimi, Esq., the issues that arise for determination in this suit are:
1. Whether the Claimants were Appointees or Employees at the time of their retirement.
2. Whether Appointees are entitled to benefit from the provisions of Section 210 of the 1999 Constitution (as amended) and the provisions of the Kaduna State Pension Reform Laws, 2016.
3. Whether the actions of the Defendants are not within the provisions of any Law.
7. However, by my understanding of the Claimants’ case, as circumscribed in the questions sought to be determined and the reliefs claimed in the Originating Summons which have been clearly set out in the foregoing; the Affidavit evidence adduced by both parties, two issues seem to me to have arisen for determination in this case.
Without prejudice to the issues formulated by learned counsel on both sides, the issues for determination in this suit are reframed as follows:
1. Whether or not the Claimants are public servants as construed by Section 318 of the Constitution of the Federal Republic of Nigeria and thereby entitled to benefit from the provisions of Section 210 of the 1999 Constitution (as amended) and the provisions of the Kaduna State Pension Reform Laws, 2016.
2. If issue one is resolved in the affirmative, whether the Defendants can retroactively alter by a circular the status of the Claimants who had retired in their various offices, to political appointees and thereby divest the Claimants’ right to pension as guaranteed by the 1999 Constitution.
In determining the questions set down for determination by the Claimants in this suit, I should state that I have taken due cognizance and benefits of the totality of the written and oral arguments canvassed by learned counsel to support the issues they have respectively formulated and canvassed; and as I proceed with the judgment, I shall endeavour to make specific reference to their submissions as I deem needful.
DETERMINATION OF THE TWO ISSUES TOGETHER
8. In order to appreciate the case of the Claimants and put their grievances in proper perspectives, paragraphs 10,11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Affidavit filed to support the Originating Summons, and the documents attached as Exhibits C, D, E, F and G are relevant.
9. It seems to me that the focal point of the Claimants’ grievances and cause of action is the depositions in paragraphs 12,13,15,16 and 17 of the Affidavit in support of the Originating Summons. The said depositions are reproduced as follows:
12. That the Plaintiffs continued to draw from their monthly pension as aforesaid without any hindrance until recently when the Kaduna State Permanent Secretary (Establishment) on behalf of the Head of Service of Kaduna State purport to have issued a circular pursuant to which the Kaduna State Government now consider retired Heads of Service and Permanent Secretaries as political appointees who are not subject to compulsory retirement at the age of 60 years or completion of 35 years in service and therefore not entitled to draw 100% of their annual salary for life as gratuity.
13. That a copy of the Kaduna State Government circular signed by the Permanent Secretary Establishment is attached hereto and marked as Exhibit ‘D’.
15. That a copy of the Table of Summary of Retired Permanent Secretaries current and proposed monthly pension payment prepared by the Kaduna State Pension Bureau is attached hereto and marked a Exhibit ‘E’.
16. That the Defendants started implementing the contents of Exhibit ‘E’ in the month of March, 2020 when the Plaintiffs discovered that the payment of their monthly pension have been drastically reduced exactly in the manner depicted in Exhibit ‘E’ herein without their concurrence.
17. That by their action in paragraph 16 herein the Defendants have withheld part of the Plaintiffs pension.
9. Citing the cases of Agboola Vs State  11 NWLR (Pt 1366) 619; Ezemba Vs Ibeneme  14 NWLR (Pt 894) 617; Nsofor Vs State  18 NWLR (Pt 905) 292, learned counsel for the Claimants submitted that the facts that the Claimants are retired public servants from the public service of Kaduna State and entitled to the payment of 100% of their salary as pension were admitted by the Defendants and needs no further proof. Learned counsel also made reference to the provisions of Section 210 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and submitted that the Claimants’ right to pension is constitutional and not dependent on the whimsical discretion of a government. Learned counsel submitted further that any derogation from the right to pension amounts to an infraction of the constitutional provision; that the reduction of the Claimants’ full or complete pension by the Defendants was unlawful; that the Defendants’ action is an infraction of the Claimants’ constitutional right to pension and that the arbitrary reduction of the Claimants’ pension by the Defendants in effect amounts to withholding the Claimants’ right to pension. In further support of his submission, learned counsel cited the cases of Popoola & Ors Vs A.G. Kwara State & Ors  LPELR 3608; Ajao Vs Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office & Anor  LPELR 41407
10. Learned counsel for the Claimants made further reference to Exhibit D, the circular issued by the Defendants by which the Claimants were categorized as political appointees and further submitted that retrospective legislation especially when it has the effect of depriving a vested right is against the jurisprudence of our land. Learned counsel argued further that by Section 151 of the Evidence Act 2011, the Defendants are estopped from categorizing or labeling the Claimants as political office holders. On a last note, learned counsel urged the Court to resolve all the issues for determination in favour of the Claimants and grant all their reliefs sought.
11. Learned counsel for the Defendants, in response, argued that the career of an employee in the Kaduna State Public Service starts at the entry level and terminates at the substantive rank of a Director; that Section 210 of the Constitution and the provisions of the Kaduna State Pension Reform Law are applicable to these class or category of people and that the Claimants were all employees of the Public Service prior to their appointment to the ‘exalted’ political offices they occupied.
Learned counsel further argued that appointment into the offices of Head of Service and Permanent Secretary are not promotions or elevations because some of the Claimants were so appointed when they were below the substantive rank of Directors; that their appointments are not in grade and cadre of the Public Service of Kaduna State and Section 318 (1) of the 1999 Constitution. Learned counsel citing the authorities of Ituen Vs Ikot Ekpene Local Government Council  LPELR 43646 and Popoola & Ors Vs A. G. Kwara State & Ors (supra), further urged the Court to hold that the Claimants were political office holders whose appointment are not protected by Section 210 of the 1999 Constitution because occupants of such offices are not required to be appointed from the Public Service.
Learned counsel argued further that the actions of the Defendants were pursuant to the Kaduna State Pension Law 2016 and that by virtue of Section 210 (2) of the 1999 Constitution, the Defendants are allowed and empowered to alter the benefits of retired public servant. Learned counsel, in conclusion, urged the Court to resolve the issues for determination against the Claimants and dismiss the suit.
12. Now, the Claimants have opted to commence this suit by way of Originating Summons. It is trite that in such cases, the depositions in the Affidavit filed constitute both the pleadings and the evidence at the same time. The question now is, whether the Claimants have succeeded in adducing cogent evidence to secure the determination of the questions submitted in this suit in their favour in order to be entitled to the reliefs claimed?
13. After a careful appraisal of the totality of the Affidavit evidence on record and the arguments canvassed by the respective learned counsel both for the Claimants and the Defendants, it seems clear to me that the resolution of the issues set down for determination devolves on the interpretation of public service as defined in Section 318 of the 1999 Constitution (supra), the application of the Kaduna State Pension Reform Law 2016(supra) vis-a-vis Section 210 of the 1999 Constitution.
As I had earlier remarked, the Defendants admitted in paragraph 5 (a) of the Counter-Affidavit that the Claimants are pensioners having retired as public servants of Kaduna State. The fact that the Claimants have been paid their monthly pension as stated in Exhibit C was also not controverted by the Defendants.
14. The Claimants grievance is however that based on a circular issued by one Amina S. Abdullahi, Permanent Secretary (Establishment) on behalf of the Head of Service; their monthly pensions have been reduced or altered by the Defendants. In proof of their case, the Claimants relied on the said circular dated 17/03/2020 marked as Exhibit D; which purported to recognize those who hold offices as political appointees and that with effect from 01/03/2020, the pensions of all past Heads of Service, Permanent Secretaries, Directors-General shall be calculated at their last grade prior to their political appointments. Put differently, the Claimants’ contention basically is that as retired pensionable public servants, their rights to full pension cannot be retroactively reduced or altered by the Defendants merely by the issuance of a circular.
15. Now, by Rule 01003 (17) of the Kaduna State PSR, public service is: “service which ranks as such for the purpose of Pensions Act (Cap. 346).” Furthermore, Section 102 of the Pensions Act (supra) states that, “public service is defined in Section 318 of the Constitution of the Federal Republic of Nigeria 1999.”
Undoubtedly, the Public Service Rules Kaduna State 2005 makes provision for retirement in the public service in Rule 02809 thereof. For the ease of reference, the said Rule is reproduced hereunder as follows:
(i) The compulsory retirement age for all grades in the Service shall be 60 years or 35 years of pensionable service whichever is earlier. No officer shall be allowed to remain in service after attaining the retirement age of 60 years or 35 years of pensionable service whichever is earlier.
16. The above Rule does not need a person with clairvoyant skills to understand its plain meaning. The argument of the learned counsel for the Defendants is that the career of an employee in the Kaduna State Public Service starts at the entry level and terminates at the substantive rank of a Director. This allegation was not proved by the Defendants. The burden of proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise from the pleadings. See Section 137(1) of the Evidence Act 2011. The mere assertion of a fact without more is not a credible evidence of the fact asserted. The party making the assertion must go further to prove or establish the assertion, in order to give it some evidential weight. To give the provision of the Rule the interpretation suggested by the Defendants’ learned counsel or to equate appointment into the offices of the Head of Service, Permanent Secretaries, et al as “exalted political offices” and not as promotions or elevations without prove is, with due respects, not only a wishful thinking but it is also absurd as this will clearly defeat the purpose of the provision and the intendment of the drafters.
17. This is more so because public service of a State is defined by Section 318 of the Constitution of the Federal Republic of Nigeria as:
“The service in any capacity in respect of the Government of the State and it includes service as listed in paragraphs (a) – (g) thereof.” (Underlining mine for emphasis).
From the above definition, it is clear that the relevant operative phrase is "in any capacity". It is trite that in construing the word “any” in a statute, it should generally depend on the setting or context and the subject. It is also trite that the word “includes” when used or construed in a statute or written enactment, enlarges the scope of the subject matter it qualifies or tends to qualify.
18. I am of the view that the intendment of the draftsmen of Section 318 of the Constitution (supra) is explicit, clear and understandable. The attitude of the Court in the circumstances is to confine itself to the words so as not to distort the intended meaning. In Agwuna Vs. AG Federation  5 NWLR (Pt. 396) 418, 418-435, the Supreme Court held, per Iguh, JSC (as he then was) that:
“… a court of law is concerned with law, as it is, and not with law, as it ought to be. Accordingly, it is not the business of the court of law, indeed, a court of law is not permitted to ascribe meanings to the clear, plain and unambiguous provisions of a statute in order to make such provisions conform with the court’s own views of their meaning or of what they ought to mean in accordance with the tenets of sound social policy. .. I do not conceive that it is the duty the courts by means of ingenious arguments or propositions to becloud, change, qualify or modify the clear meaning of the provisions of a statute … once such provisions are plain, unequivocal and unambiguous. ..”
See also AG Lagos State Vs Dosunmu  3 NWLR (Pt. 111) 552 at 578-579.
18. I have examined Exhibit A and Exhibit B, the notification of cessation of appointment and record of service of the 2nd Claimant attached to the Affidavit in Support of the Originating Summons to prove that he was promoted through the ranks from his first appointment to the post of Director and up until he retired as Head of Service. There is no dispute that the Claimants were staff on pensionable terms and as such they are qualified as officers within the meaning of the word “officer” as defined in Rule 010103(15) of the Kaduna State PSR. The Rule states that the word “officer”, “when used without qualification means staff of an established post, either on pensionable or contract terms”.
If by the stretch of legal imagination of the Defendants, the provision is interpreted that the Claimants were political officer holders or that their appointments were political; then, will the Public Service Rules requiring compulsorily retirement at the age of 60 years or 35 years of pensionable service be applicable to them? I do not think so. I reject the arguments of the Defendants that the positions which the Claimants retired from are not subject to compulsory retirement upon completion of 35 years of service or upon attaining the age of 60 years.
The Defendants and learned counsel seemed to have misconstrued the meaning of the service of the Claimants in their capacities as public servants who were promoted through the ranks till they retired as required by the Rules and thereby erroneously contended that the positions they held prior to their retirement were political offices.
Based on the foregoing analysis therefore, the Claimants have proved that they served not as political appointees but as public servants in the Kaduna State in various capacities from the date of their employment until they voluntarily retired in their various positions or capacities as Permanent Secretaries, Heads of Service and other capacities. And I so hold.
19. As earlier remarked, the Defendants did not dispute that the appointments of the Claimants are pensionable and that the Claimants have been paid their monthly pension prior to the issuance of Exhibit D. The contention of the Claimants is that their pension cannot be retrospectively reduced upon the issuance of a circular by the Defendants after they had retired.
Now, Exhibit D dated 17th March, 2020 is the circular by which the Claimants’ pension was reviewed or altered. The relevant portion of the exhibit states as follows:
“2. The Kaduna State Government now recognizes those who hold such offices as political appointee and are not subjected to compulsory retirement at the age of 60 years or completion of 35 years in service.
3. As a result of the foregoing, the Kaduna State Executive Council has vide its conclusion of Monday 3rd February, 2020 approved that all past Heads of Service/Permanent Secretaries/Directors-General pension shall be calculated at their last grade prior to the political appointment as Heads of Service/Permanent Secretaries/Directors-General with effect from 1st March, 2020, please.”
20. The submission of learned counsel for the Claimants’ is that the Defendants violated the constitutional rights of the Claimants by reviewing or reducing their pensions and that the Defendant cannot retrospectively act on a circular to deny the Claimants of their constitutional right. Learned counsel relied on the provisions of Section 210 (1) and (2) of the Constitution (supra) and further submitted that the arbitrary reduction of the payment of the full pension by the Defendants amounts to withholding of their right to pension.
In reaction, learned counsel for the Defendants also hinged his argument on Section 210 (2) of the 1999 Constitution and further argued that the basis of the power of the Defendants to alter or reduce the Claimants’ pension placed is in the Kaduna State Pension Reform Law 2016 (the Pension Law). The argument of the Defendants is that the Pension Law was made in compliance with the provisions of Section 210 of the 1999 Constitution.
21. As Lord Steyn stated, in R Vs Secretary of State for The Home Department, Ex Parte Daly  3 All ER 433;  1 AC 532; that “in law, context is everything”. The context and the ambit of the reliance on the provisions of the Pension Law as the basis of the power of the Defendants to alter the benefit of retired public servant as posited by learned Defendants’ counsel require clarification. To put differently, are the Defendants correct in the context and/or the interpretation of Section 210 (2) of the 1999 Constitution, as a defence to the Claimants’ case?
22. The uncontroverted evidence before the Court is that the Claimants are retired pensionable public officers. According to the learned Claimants’ counsel, the Defendants simply adopted a policy via Exhibit D which stated that effective from 01/03/2020, the calculation of Claimants’ pension is at the last grades they attained prior to their appointments as Heads of Service/ Permanent Secretaries.
As correctly submitted by the respective learned counsel for both parties, being pensionable public officers of the State, the provisions of Section 210 (1) and (2) of the 1999 Constitution is applicable to the Claimants. The argument of the learned counsel for the Defendants is that the Defendants have a mandate to enact the Pension Law by the provision of Section 210 (2) of the Constitution. Again, the Defendants made mere assertions without proving same. The pertinent question is, do the Defendants have such mandate and if so, to what extent is the power of the Defendants under the said Law?
23. I have taken liberty to reproduce the provisions of Section 210 (1) and (2) of the 1999 Constitution.
“Subject to the provisions of subsection (2) of this section, the right of a person in public service of a State to receive pension or gratuity shall be regulated by law.
Section 210 (2)
"Any benefit to which a person is entitled in accordance with or under such law as is referred to in Sub-section (1) of this Section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the code of conduct." (Underlining for emphasis)
The above provision is very clear and unambiguous. It provides simply that pension or gratuity shall not be withheld under any guise or condition that is not clearly stipulated. I have critically reviewed the provisions of the said Pension Reforms Law; there is no provision therein which stated that pension of Kaduna State employees can be withheld or altered to his disadvantage. Contrariwise, the objectives of the Law inter-alia as stated in Section 4 of the said Law is, “to ensure that every person who worked in the Public Service of the State receives his retirement benefits as and when due”.
25. The importance of pension rights have been recognized in a plethora of decided cases. In Martins & Ors Vs Kolawole  LPELR-4475, it was held that:
“Pension is a serious matter. It is designed to cushion the retiree from the hardship of life in retirement and to, also, serve as a reward for the retiree's past meritorious service to the employer.”
Also in Momodu Vs National Union of Local Government Employees  8 NWLR (PT 362) 336, the Court, per Ubaezeonu JCA stated that:
“A pension in the context of this case is an accrued right of an employee, be the right in money or other consideration, on retiring from the services of his employer and satisfying the conditions for payment of the said pension. It is a right which cannot be unilaterally taken away by the employer.”
See also CBN Vs Amao  5-7 SC (Pt 1) 25; Popoola & Ors Vs A. G. Kwara State & Ors (supra) as cited by respective counsel.
26. I have the view that the Defendants did not act under any Law or statute. The Defendant simply acted under the directive or circular emanating from the Permanent Secretary (Establishment) which I am afraid does not and cannot have the force of law but is rather in breach the laws mentioned above. As stated in Exhibit D, the Defendants also acted contrary to the circular issued earlier by which the total annual emolument as pension for life was adopted for the categories of officers appointed from the Civil Service to the post of Heads of Service and Permanent Secretaries.
Even if the action of the Defendants was made pursuant to the Pension Law as posited by the learned Defendants’ counsel, such law is inconsistent with the Constitution of the Federal Republic of Nigeria (as amended). See Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria.
It is settled that once the Constitution sets the condition for doing a thing, that condition cannot be set aside by any subsidiary legislation or rule made by the legislature or some other body. I also make reference to the decision of this Court in Ambassador D. C. B. Nwanna Vs National Intelligence Agency & 2 Ors Unreported Suit No. NICN/ABJ/123/2011, delivered on 16th December 2013, where it was held that a circular cannot amend the Public Service Rules.
27. Exhibit D, the circular emanating from the Office of a Permanent Secretary (Establishment) cannot have force of law, unless it is reduced or enacted into law, and even when such is done, it cannot supersede the provisions of the Pensions Act, otherwise, such enactment (if any) shall be void to the extent of inconsistency with the provisions of a Federal Act.
It is my considered view therefore, the Defendants and by extension of the Executive Council, had exceeded the powers in reviewing or in altering the Claimants’ pension. The purported review or the alteration of the Claimants’ pension runs riot and violent to the provisions of Pensions Act; it is not only draconic but the action was in bad faith. Therefore, the Defendants’ action is illegal, unlawful, unconstitutional and void. And I so hold.
28. Now, it is pertinent to further state that generally speaking, that legislation by which the conduct of mankind is to be regulated ought, when introduced, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law or action. Prima facie therefore a new legislation or directive will deal with future not past events. If it were not so, the legislation or directive might annul rights already acquired, while the presumption is against this intention.
Coming to the policy of the Court, the consensus of judicial opinion is that the Courts lean against so interpreting an Act or Law as to deprive a party of an accrued right. Perhaps no rule of construction is more firmly established than this; that a retrospective operation is not to be given to a statute or action so as to impair an existing right or obligation, otherwise than as regards a matter of procedure.
On the basis of the established principle of law, can the Defendants by a circular, Exhibit D, retrospectively review or alter the pension of the Claimants who had retired from service?
29. I have critically perused Exhibit D, the contents or wordings therein are not only ludicrous but preposterous. I hereby again reproduce paragraph 2 of the said exhibit. It states:
“The Kaduna State Government now recognizes those who hold such offices as political appointee and are not subjected to compulsory retirement at the age of 60 years or completion of 35 years in service.”
How did the Defendants arrive at the “so called recognition”? This answer was not provided or proved by the Defendants.
In the instant case, in my considered estimation, there is nothing in the face of the circular, Exhibit D that lends itself to give the Defendants the powers to retrospectively review the Claimants’ pension and the Defendants have failed to clearly establish any. I should further emphasize that neither do the provisions of the Pension Law give the Defendants the power to retrospectively review or alter the full emolument of the Claimants to pension. It will therefore be unconscionable for the Defendants; having admitted in the Exhibit D that the Claimants were appointed from the Civil Service to the post of Heads of Service, Permanent Secretaries and Directors-General and having paid the Claimants their full retirement benefits and pension since the Claimants retired; to now summersault to contend that the Claimants appointments are political and thereby by the circular approved to review or alter their pension to be calculated at their prior grade prior to their respective appointments. I endorse with the contention of the Claimants’ learned counsel on this point.
30. I must also state that the Claimants’ relief, inter-alia, seeking declaration that the Defendants purported reduction of their monthly pension is unconstitutional, ultra vires, null and void, proceeded from and are in consonance with the Claimants’ right to pension as guaranteed by Section 210 of the Constitution (supra). In other words the Claimant’s remedy for the violation of their constitutional right is inherent in and provided for not only in the 1999 Constitution but in the Pension Reform Law itself. As such, I must hold that the Claimants have clearly established their entitlements to the declaratory reliefs sought by credible and unassailable evidence.
31. On the basis of the foregoing analysis therefore, I have no difficulty in resolving the two issues I had set down for determination in the Originating Summons in favour of the Claimants.
On the whole, the Claimants’ action succeeds in its entirety against the Defendants; and I hereby enter judgment on the following terms:
1. It is hereby declared that the Claimants’ right to pension as retired public servants in the Public Service of Kaduna State are guaranteed and protected by the provisions of Section 210 of the 1999 Constitution (as amended) and the Kaduna State Pension Reform Law 2016.
2. It is hereby further declared that pursuant to (1) above, the Defendants lack the vires to legislate or act retrospectively in the manner that derogates the Claimants’ right to pension.
3. It is hereby also declared that the reduction and/or review of the Claimants pension by the Defendants is unconstitutional, null and void.
4. The Defendants are hereby ordered forthwith to pay within thirty (30) days to the Claimants the balance or difference of their monthly pension from the unlawful deduction made from the Claimants’ monthly salary that was effected from March 2020.
5. The Defendants are hereby restrained whether by themselves, their agents, parastatals, servants, privies and/or assigns whosoever and howsoever from acting in any manner prejudicial to the Claimants’ constitutional right to pension as retired public servants in the public service of Kaduna State.
A cost of
N100,000 is hereby awarded against the Defendants.
SINMISOLA O. ADENIYI
S. A. Atung Esq., with Messers Z. A. Adamu and H. Yaro – for Claimants
H. D. Bijimi Esq., with M. S. Ladan Esq. for Defendants