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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height: normal"><u><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">REPRESENTATION</span></u><span style="font-size:12.5pt;font-family:"Times New Roman","serif""><o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Taiwo Kupolati with S. O. Awolonu & Dapo Obe for the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A. Isah for the 1st Defendant<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">A.A. Iriogbe & Jerome Okoro for the 2<sup>nd</sup> Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" align="center" style="text-align:center"><u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif"">JUDGMENT</span></u><span style="font-size:12.5pt;line-height:115%;font-family:"Times New Roman","serif""> <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">1. Introduction & Claims<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The Claimant approached this Court by his <i>General Form of Complaint </i>dated 21/6/13 and sought the following reliefs -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. A declaration that the 2<sup>nd</sup> Defendant’s letter with reference number FC 3418/S. 56/Vol.II/7977 entitled ‘DISENGAGEMENT FROM PUBLIC SERVICE RE: PUBLIC SERVICE REFORMS RIGHTSIZING EXERCISE 2<sup>ND</sup> PHASE OF STAFF SEVERANCE ‘purportedly terminating the plaintiff’s employment with the 2<sup>nd</sup> defendant is null, void and of no effect whatsoever. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">2. A declaration that the plaintiff’s employment with the 2<sup>nd</sup> defendant remains extant and valid. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. An order directing the 2<sup>nd</sup> defendant to reinstate the plaintiff to his position as the Principal Executive Officer 1 in compliance with the directive of the 1<sup>st</sup> defendant as stated in his letter dated 31<sup>st</sup> July, 2006. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">4. An Order directing the 1<sup>st</sup> and 2<sup>nd</sup> defendants to pay to the plaintiff all allowances, benefits, remuneration and entitlements due to the plaintiff from 1<sup>st</sup> December 2006 till judgment is delivered. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Interest at the rate of 21% per annum on the judgment sum from the date judgment is given till the final liquidation thereof. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">6. The costs of the action.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Claimant filed along with his <i>Form 1 </i>his statement of facts, witness written deposition as well as list and copies of the documents to be relied on at trial. While 1st Defendant did not file any denfece to this case, the 2nd Defendant entered an appearance and filed its statement of defence together with requisite frontloaded processes. On 25/3/14, the Claimant filed a reply to the statement of defence filed by the 2nd Defendant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-pagination:widow-orphan lines-together"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-pagination:widow-orphan lines-together"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">2. Case of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-pagination:widow-orphan lines-together"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The hearing of this case commenced on 13/7/15 when the Claimant testified as <i>CW1, </i>adopted his witness deposition dated 21/6/13 as his evidence in chief and tendered 14 documents as exhibits. The documents were admitted in evidence and marked as <i>Exh. C1 - Exh. C14. <o:p></o:p></i></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-pagination:widow-orphan lines-together"><i><span style="font-size:12.5pt;font-family: "Times New Roman","serif""> </span></i></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal;mso-pagination:widow-orphan lines-together"><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-font-width: 92%">The case of the Claimant as pleaded by him is that he was employed as a messenger on Grade Level 02 by the 2<sup>nd</sup> Defendant (Federal Inland Revenue Service) sometime on 6 July 1974 and rose all through the years to the position of a Principal Executive Officer at Grade Level 12 before his employment with the 2<sup>nd</sup> Defendant was severed in 2006; that in the course of his employment with the 2<sup>nd</sup> Defendant he enhanced his credentials, sat for, passed the <i>General Certificate Education (GCE) Ordinary Level Examination</i> and was promoted to the rank of a Clerical cadre; that he subsequently rose in the course of employment; that however, sometime in 2006, the 2<sup>nd</sup> Defendant wrongfully and abruptly terminated his appointment on grounds of an alleged Federal Government Rightsizing Exercise, wherein the 2<sup>nd</sup> Defendant alleged that there was a directive from the Federal Government to terminate the employments of all civil servants who did not possess the requisite qualification for their respective grades or position and that as a result he was purportedly found not to possess the requisite qualification for his position as a Principal Executive Officer, in consequence of which his appointment was disengaged via letter dated 31 July 2006. Claimant further averred that his appointment having been determined, he wrote a Letter of Appeal dated 10/10/06 to the 1<sup>st</sup> Defendant (Federal Civil Service Commission); that the 1<sup>st</sup> Defendant having gone through his Letter of Appeal and having found the Claimant’s appointment to be regular, wrote a letter dated 31/7/06, directing the 2<sup>nd</sup> Defendant to re-instate the Claimant, the Claimant’s appointment having been found to be substantially regular; that in spite of the directive of the 1<sup>st</sup> Defendant, which was the body responsible for appointment, promotion, and discipline of Civil Servants as at the time of the event that the 2<sup>nd</sup> Defendant should re-instate the Claimant, the 2<sup>nd</sup> Defendant willfully persistently and neglectfully refused to re-instate the claimant; that aggrieved with the refusal of the 2<sup>nd</sup> Defendant to follow the directive of the 1<sup>st</sup> Defendant the Claimant instituted an action at the Federal High Court in 2007 against the Defendants, and upon the amendment of the Constitution, which vested jurisdiction on the National Industrial Court to sit on all matters including trade, labour and employment, the matter was transferred to the National Industrial Court on 11/10/13.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination by the 1st Defendant witness, the witness testified that he was discharged from service on 31/7/06; that 1st Defendant paid him terminal benefit; that he was prevented by 2nd Defendant from paying back the money which was a condition for reinstatement and that as at 2006 when he was disengaged he was not a Degree holder. While being cross examined by the learned Counsel to the 2nd Defendant, witness stated that his appointment was severe in 2006; that he was paid a severance package; that 2nd Defendant prevented him from refunding the money when he wanted to; that he went to the Broad street office of 2<sup>nd</sup> Defendant where they requested him to bring his letter of reinstatement and that of absorption; that he did not and still do not have; that since 2006 he has not been doing anything; that 2<sup>nd</sup> Defendant refused to reinstate him; that he was promoted to Level 12 with the certificate he held which was <i>G.C.E O Level</i>; that he wrote a letter to the National Assembly on this matter and that he was not at the National Assembly on the day of hearing because he did not receive notice of hearing. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">3. Case of the 2nd Defendant<o:p></o:p></span></b></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On 3/11/15, the 2nd Defendant opened its case and called one Ambrose Apollos Gombe as its lone witness. The witness adopted his witness deposition dated 1/9/14 as his evidence in chief and tendered 18 documents as exhibits. The documents were admitted as exhibits and marked as <i>Exh. D1 - Exh. D18. <o:p></o:p></i></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The case of the 2nd Defendant as contained in its pleadings is that the Claimant fell into the category (10): Officers without Requisite Qualification for Entry/Advancement in their cadres (10) above; that this circular was widely circulated and every officer was aware of the category they belonged; that under the exercise the Management of the 2<sup>nd</sup> Defendant collated the Nominal Roll of officers and the category applicable to them and forwarded them to the <i>Federal Civil Service Commission (FCSC)</i> whose duty it was to issue disengagement letters to the officers concerned; that the disengagement letters were issued accordingly but the disengagement letter issued for the Claimant by the FCSC read disengaged on ground of <i>irregular appointment</i> instead of <i>without requisite qualification </i>as contained in the nominal roll forwarded to the Federal Civil Service Commission; that the Claimant belonged to category (10) not having obtained a Higher Qualification even though he was holding the post of Higher Executive Officer (Grade level 12) at the time; that the Claimant based on his termination of appointment collected his terminal benefits and left the Service; that amongst the benefits collected as indicated on the Termination Letter were Gratuity, Pension as Earned, Gratuity, Pension for the First Year and Repatriation Allowance; that the Federal Government also circulated a circular to the effect that officers desiring reinstatement should refund the disengagement package collected by them, failure of which they would be deemed to have forfeited their right to be reinstated; that the Claimant till today, has not refunded the severance package collected by him; that the Claimant after collecting his severance package, purportedly appealed to the Federal Civil Service Commission and also claimed to have been reinstated, producing a letter dated the same date of disengagement from Service; that the 2<sup>nd</sup> Defendant upon seeing the letter of reinstatement forwarded same to the Federal Civil Service Commission seeking their comment on the letter considering that it bore the same date as that of the termination letter, that it ought to reflect lack of requisite qualification but the Federal Civil Service Commission replied and sought to put the matter on hold pending the outcome of the matter which as at the time was already pending at the Federal High Court; that the Claimant had filed a suit at the Federal High Court on ground of unlawful termination of appointment. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><i><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></i></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Under cross examination by the Claimant, the witness testified that the Claimant had sat for promotion examination before he was disengaged; that he was not aware that Claimant was interviewed for Grade level 14; that as at the time <i>Exh</i>. <i>D8</i> was written 1<sup>st</sup> Defendant was the body responsible for appointment, promotion and discipline of Civil Servants; that <i>Exh.t</i> <i>D8</i> was dated 31/7/06 while the letter of disengagement of the Claimant was also dated same day; that it this became difficult to comply with the former hence he had to seek clarification from the 1<sup>st</sup> Defendant and that Claimant’s appointment was severed. Witness added that he is on Grade Level 08 equivalent to Level 13 in the Civil Service; that he is aware that Claimant rose from Messenger to Level 12; that a minimum of OND is the requirement for reinstatement; that 1<sup>st</sup> Defendant directed 2<sup>nd</sup> Defendant to put on hold the case of the Claimant pending the outcome of the case at the Federal High Court then; that Defendants did not inform the Claimant because that process had not been concluded and that he is not aware that the 1<sup>st</sup> Defendant sought its name to be struck out of this suit as not being a necessary party. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align: justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">4. Submissions on Behalf of the 2nd Defendant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">At the close of trial both the 2nd Defendant and the Claimant filed their final written addresses. The 1st Defendant did not file any. The final written address of the 2nd Defendant was dated and filed on 4/8/16. In it, learned Counsel set down the following issues for determination -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">1. Whether the Applicant is qualified for Reinstatement based on the criteria given by the policy document on the right sizing exercise by the Federal Government of year 2006.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">2. Whether the Applicant is qualified for Reinstatement based on the Irregular and Defective Reinstatement letter tendered by the Applicant?<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">3. Whether upon collection of his terminal benefits and failing to return same, the Applicant is still entitled to any other benefit from the Federal Government based on the rightsizing exercise of the year 2006. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">Arguing issue 1, learned Counsel submitted that the Claimant was not qualified for reinstatement into service of the Federal Government based on the criteria given by the policy document on the right sizing exercise by the Federal Government of year 2006; that the Claimant's case belonged to Category 10 on the <i>Addendum to the Rightsizing Exercise document </i> (Lack of Requisite Qualification) and that the Claimant as a senior executive officer was required to have attained a Higher Degree Qualification rather than West African School Certificate he held as at the time and even several years later. Counsel added that the 2nd Defendant crossed check the eligibility of the Claimant to continue in service and that the Claimant also confirmed under cross examination that he did not posses any higher educational Degree; that the Claimant accepted his disengagement, collected his accrued benefits and left service and that there is deemed to a <i>consensus ad idem </i>regarding the termination of his employment citing <i>Morohunfola v. Kwara State College of Technology (1990)4 NWLR (Pt. 145) 506. </i>Counsel submitted that it is not tenable for the Claimant to turn around and contest his disengagement after accepting and collecting his terminal benefits. Counsel urged the Court to so hold. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">On issue 2, learned Counsel answered same in the negative; that the reinstatement letter was issued and dated the same day as the disengagement letter; that same should be disregarded as being irregular and untenable and that it would negate the whole exercise if the Claimant was to be reabsorbed without prerequisite qualification. Counsel urged the Court to resolve this issue in favour of the 2nd Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.55pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.55pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">Respecting issue 3, learned Counsel submitted that the policy document of the Federal Government Rightsizing Exercise of 2006 states among others that any disengaged staff desiring reinstatement should refund whatever quantum of terminal benefits paid to him upon application for reinstatement; that the Claimant collected his terminal benefits failed to refund same as directed by the applicable government circular. Claimant submitted that once an employee is laid off and collects his terminal benefits it is presumed that he is satisfied with the termination of his employment citing <i>Agoma v. Guinness (Nig.) Limited (1995)2 NWLR (Pt. 380) 672 & Odiase v. Auchi Polytechnic (1998)4 NWLR (Pt. 145) 506. </i>Learned Counsel urged the Court to resolve this issue in favor of the 2nd Defendant and enter Judgment in favor of the 2nd Defendant.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">5. Submissions on Behalf of the Claimant<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="margin-left:.5pt;mso-add-space:auto; text-align:justify;line-height:normal"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">The final written address of the Claimant was dated and filed on 1/9/16. In it, learned Counsel set down the 3 issues for determination as follows -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:29.5pt;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:-28.1pt;line-height:normal;tab-stops:30.25pt 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:29.5pt;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:-28.1pt;line-height:normal;tab-stops:30.25pt 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the refusal of the 2<sup>nd</sup> Defendant to follow the directive of the 1<sup>st</sup> Defendant (which was the body responsible for the appointment, promotion and discipline of civil servants) to re-instate the Claimant, having found the Claimant’s appointment to be substantially regular, did not amount to wrongful termination of the Claimant’s appointment. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:29.5pt;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:-28.1pt;line-height:normal;tab-stops:30.0pt 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-font-width: 92%">2. Whether the letter to re-instatement dated 31/7/06, directing the 2<sup>nd</sup> Defendant to re-instate the Claimant was not substantially regular. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:29.5pt;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:-28.1pt;line-height:normal;tab-stops:30.0pt 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-font-width: 92%">3. Whether the directive to disengaged staff who desired to be re-instated to refund their terminal benefit was not subject to a condition to wit: that upon return of their terminal benefit, they will be given a letter of re-absorption? And if the answer to the poser above is in the affirmative, whether the inability of the Claimant to refund the terminal benefit collected by him was not due to the refusal of the 2<sup>nd</sup> Defendant </span><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">to give the Claimant a letter of re-absorption. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:29.5pt;margin-bottom:.0001pt;text-align:justify;text-indent:-28.1pt; line-height:normal;tab-stops:30.0pt 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">Respecting issue 1, learned Counsel argued that the 1st Defendant is the executive body charged with authority to make appointments, transfer and to exercise disciplinary control over Federal civil servants; that the 1st Defendant found the appointment of the Claimant to be substantially regular and directed the 2nd Defendant to reinstate the Claimant; that the failure of the 2nd Defendant to follow the directive of the 1st Defendant to reinstate the Claimant was tantamount to the 2nd Defendant arrogating to itself the powers of the 1st Defendant which only the 1st Defendant can rightfully exercise under the <i>Civil Service Rules </i>citing <i>Ozoana v. PSC (1995)4 NWLR (Pt. 391) 638.</i> Counsel submitted further that such refusal by the 2nd Defendant amounts to wrongful termination of employment for which the Claimant is entitled to damages and urged the Court both to reinstate the Claimant as well as award damages as compensation. <o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">Issue 2 is whether the letter of reinstatement dated 31/7/06 issued by the 1st Defendant directing the 2nd Defendant to reinstate the Claimant was not substantially regular. Learned Counsel submitted that the fact that the letter of reinstatement carried the same date as letter of disengagement 31/7/06 does not make the letter defective or irregular; that by <i>Section 150(1) & (2), Evidence Act, 2011, </i>there is presumption of regularity of official act as well as the person acting in public capacity. Counsel cited <i>Ogbaniya v. Okudo (N0. 2) (1990)4 NWLR (Pt. 146) 551 & Bello v. A.G. Lagos State (2007)2 NWLR (Pt. 1017) 115 at 126. </i>Counsel submitted that the letter of reinstatement was dully signed by C.C.Ezenwa on behalf of the Hon Chairman, dated, has reference number and was addressed to the Claimant and that there is presumption of authenticity of a document until the contrary is proved citing <i>Ukeje v. Ukeje (2014) All FWLR (Pt. 730) 1323. </i>Learned Counsel urged the Court to resolve this issue in favor of the Claimant.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif"">With respect to issue 3, learned Counsel submitted that the 2nd Defendant refused to perform a condition precedent for the return of the terminal benefit collected by the Claimant by refusing to give the Claimant a letter of re-absorption and that the 2nd Defendant cannot now argue that because the Claimant did not return the terminal benefit he collected he was not entitled to the reliefs sought; that the Claimant did not collect the terminal benefit with the hope of accepting his disengagement and that the collection of the terminal benefit did not render the disengagement mutual. Counsel urged the Court to so hold. On 16/9/16, learned Counsel to the 2nd Defendant filed a 3-page reply on points of law.<o:p></o:p></span></p> <p class="MsoNormal" style="margin-top:0cm;margin-right:.25pt;margin-bottom:0cm; margin-left:0cm;margin-bottom:.0001pt;text-align:justify;text-indent:1.4pt; line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt; font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><b><span style="font-size:12.5pt;font-family: "Times New Roman","serif"">6. Decision<o:p></o:p></span></b></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I have carefully read and understood all the processes filed by learned Counsel on either, listened to their oral submissions, listened to testimonies of witness called at trial, watched their demeanor and carefully as well as thoroughly evaluated all the exhibits tendered and admitted in this case. Having done all this, for the just determination of this case I adopt the 3 issues as set down for determination by the Claimant as follows - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">1. Whether the refusal of the 2<sup>nd</sup> Defendant to follow the directive of the 1<sup>st</sup> Defendant (which was the body responsible for the appointment, promotion and discipline of civil servants) to re-instate the Claimant, having found the Claimant’s appointment to be substantially regular, did not amount to wrongful termination of the Claimant’s appointment. 2. Whether the letter to re-instatement dated 31/7/06, directing the 2<sup>nd</sup> Defendant to re-instate the Claimant was not substantially regular. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif";mso-font-width: 92%">3. Whether the directive to disengaged staff who desired to be re-instated to refund their terminal benefit was not subject to a condition to wit: that upon return of their terminal benefit, they will be given a letter of re-absorption? And if the answer to the poser above is in the affirmative, whether the inability of the Claimant to refund the terminal benefit collected by him was not due to the refusal of the 2<sup>nd</sup> Defendant </span><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">to give the Claimant a letter of re- absorption.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:29.5pt;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:-28.1pt;line-height:normal;tab-stops:30.0pt 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 1, there is a consensus among the parties that the Claimant was an employee of the 2nd Defendant; that the 1st Defendant is the executive body charged with employment, promotion, transfers and discipline of employees of the Federal Government often referred to as civil servants. Now in exercise of its powers, the 1st Defendant by a letter dated 31/7/06 - <i>Exh. C6 </i>disengaged the Claimant from the public service. Again, there is no contest as to the effect of that exhibit. The law remains trite that a letter of termination becomes effective from the date it is received . See <i>WAEC v. Oshionebo (2006) LPELR-7739 (CA)</i>. Thus the services of the Claimant had been effectively brought to an end by that exhibit. By paragraph 2 of <i>Exh. C6, </i>all the entitlements of the Claimant were stated to include Gratuity as earned; Pension as earned; 10% of gratuity; 10% of Pension for the first year and Repatriation allowance. Claimant's letter of appeal <i>Exh. C7 </i>was dated 10/10/06. It was pursuant to that exhibit that <i>Exh. C8 </i>was allegedly written approving reinstatement of the Claimant. It was dated 31/7/06. It would seem that something was definitely amidst. For, the letter reinstating or directing reinstatement of the Claimant predated his letter of appeal for reinstatement. yet there was a reference to the letter of appeal. Now the reason why the Claimant was recommended for severance as well as why he could not be reinstated was stated in <i>Exh. D9 </i>as follows - <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''The Commission is to note that the officer was recommended for severance by FIRS on the grounds that he was occupying a position for which he did not have the requisite qualification which does not qualify for reinstatement based on the severance criteria and not that his employment was irregular''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''The Commission is also to note that in the letter Ref: FIRS/HQR/HRM/rds/Vol. 11/6138/415 of 10th October, 2007, it was stated that FIRS could not reinstate and reabsorb Mr. Akomolafe on the grounds that he did not possess the requisite qualification for the position he was currently occupying as he was also not undergoing any approved course of study''. See also <i>Exh. D10 & Exh. D11. <o:p></o:p></i></span></p> <p class="MsoNormalCxSpMiddle" style="margin-top:0cm;margin-right:.25pt; margin-bottom:0cm;margin-left:0cm;margin-bottom:.0001pt;mso-add-space:auto; text-align:justify;text-indent:1.4pt;line-height:normal;tab-stops:0cm 58.1pt"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I feel satisfied with the reasons proffered by the 2nd Defendant for not complying with the directive to reinstate the Claimant. I find and hold that failure or refusal of the 2nd Defendant to reinstate the Claimant pursuant to <i>Exh. C8 </i>did not amount to wrongful termination. The rationale being that the 2nd Defendant does not have the power to terminate the employment of the Claimant in the first place. The employment of the Claimant was effectively brought to an end by the 1st Defendant which had the power to so act.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Respecting issue 2, I have found in this Judgment that the letter reinstating the Claimant bore the same date as the one that announced his disengagement on 31/7/06. I also note that the letter of appeal by the Claimant <i>Exh.C7 </i>was dated 10/10/06. Notwithstanding the anomalies in the dates on these documents, I find that <i>Exh. C8 </i> was signed on behalf of the Hon. Chairman of the 1st Defendant. I have no reason to doubt the regularity of same. See <i>Section 150, Evidence Act, 2011. </i>It is for the Defendant who contests the regularity of the document to adduce evidence to the contrary respecting the position of the law. For, the law is trite that he who asserts has the burden of proof to discharge. I therefore hold that <i>Exh. C8 </i>is regular.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">On issue 3, <i>Exh. C12 </i>is the Circular with the heading <i>Absorption of Staff Who Were Disengaged But Reinstated By The Federal Civil Service Commission (FCSC). </i>Paragraph 2 of that exhibit states clearly thus -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''2. The affected officers are to note as follows:<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> (i). Officers who have collected their terminal benefits before the decision to reinstate them should refund the money and obtain an FIRS Treasury receipt evidencing payment on or before August 31st 2007 failure to do this will imply that such staff have voluntarily retired from the Service and therefore remain disengaged''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">The content of this exhibit is quite clear and unambiguous as to what steps to be taken by any affect individual. All that the Claimant ought to do in the instant case was to follow the simple instructions contained in that exhibit. Now, did the Claimant comply with above instruction as stated in <i>Exh. C12? </i>I perused the facts of this case and the evidence led on either side. I did not see any evidence of compliance by the Claimant. There is evidence that the Claimant was paid his terminal benefits before the decision to reinstate him was taken. It is also apparent that the Claimant is aware of the applicable Government Circular and what was expected of him. At least the Claimant tendered <i>Exh. C12. </i>Yet for reasons best known to hi he opted not to return his terminal benefits and obtain FIRS Treasury Receipt as directed. Again, the consequence of failure or refusal to comply with paragraph 2(i) of <i>Exh. C12 </i>is that -<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> ''... this will imply that such staff have voluntarily retired from the Service and therefore remain disengaged''. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I find and hold that refund of the terminal benefit paid to the Claimant and obtaining FIRS Treasury Receipt were conditions precedent for the formal reinstatement of the Claimant rather than a letter of reinstatement from the 2nd Defendant as claimed by the Claimant. I further find and hold that not having complied with the precondition as contained in <i>Exh. C12, </i>the Claimant is deemed to have voluntarily retired from Service. I also find and hold that the failure or inability of the Claimant to refund the terminal benefit he collected was not due to the refusal of the 2nd Defendant to issue a letter of re-absorption to the Claimant. <o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Consequent upon my findings, I refuse the declaration sought that the 2<sup>nd</sup> Defendant’s letter with reference number FC 3418/S. 56/Vol.II/7977 entitled ‘DISENGAGEMENT FROM PUBLIC SERVICE RE: PUBLIC SERVICE REFORMS RIGHTSIZING EXERCISE 2<sup>ND</sup> PHASE OF STAFF SEVERANCE ‘purportedly terminating the plaintiff’s employment with the 2<sup>nd</sup> defendant is null, void and of no effect whatsoever. Secondly I find and hold that the service of the Claimant was effectively terminated by <i>Exh. C7</i> and hence refuse an order for a declaration that the plaintiff’s employment with the 2<sup>nd</sup> defendant remains extant and valid. Thirdly, the service of the Claimant having been effectively terminated and Claimant having failed to comply with the pre condition for reinstatement as contained in <i>Exh. C12 </i>I refuse the prayer for an order of reinstatement sought. The service of the Claimant having been effectively disengaged there is no basis for the Court to make an order for payment of all allowances, benefits, remuneration and entitlements due to the plaintiff from 1<sup>st</sup> December 2006 till Judgment is delivered. The law remains trite that the Court will not order payment of salaries or allowances fo<b>r </b>services not rendered<b>.</b> See<i> C.C.B Nigeria Limited v. Nwankwo (1993)4 NWLR (Pt. 286).</i> In much the same vein, application for interest at the rate of 21% as well as cost of this action are both refused.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I refuse all the claims of the Claimant and accordingly dismiss his case in its entirety for lack of proof by cogent, credible and admissible evidence.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">I make no order as to cost.<o:p></o:p></span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif""> </span></p> <p class="MsoNormalCxSpMiddle" style="text-align:justify;line-height:normal"><span style="font-size:12.5pt;font-family:"Times New Roman","serif"">Judgment is entered accordingly.<o:p></o:p></span></p> <p class="MsoNormal" style="text-align:justify"><span style="font-size:13.0pt; line-height:115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpFirst" align="center" style="margin-left:0cm; mso-add-space:auto;text-align:center"><span style="font-size:12.0pt;line-height: 115%;font-family:"Times New Roman","serif""> </span></p> <p class="MsoListParagraphCxSpMiddle" align="center" style="margin-left:0cm; mso-add-space:auto;text-align:center"><span style="font-size:12.0pt;line-height: 115%;font-family:"Times New Roman","serif"">____________________<o:p></o:p></span></p> <p class="MsoListParagraphCxSpLast" align="center" style="margin:0cm;margin-bottom: .0001pt;mso-add-space:auto;text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family:"Times New Roman","serif"">Hon. Justice J. D. Peters<o:p></o:p></span></p> <p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt; text-align:center;line-height:normal"><span style="font-size:12.0pt;font-family: "Times New Roman","serif"">Presiding Judge<o:p></o:p></span></p> <p class="MsoNormal"><o:p> </o:p></p>