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REPRESENTATION Dr. Akin Onigbinde, and with him are Festus Adesiyan and Adelayo Fawole, for the claimant. Y. A. Alajo, and with him is Abiodun Bello, for the defendants. JUDGMENT The claimant commenced this action by a complaint against the defendant, which was filed on 17th November 2011. The claimant is claiming from the defendants, jointly and severally, for the following reliefs – (a) A declaration that the compulsory retirement of the plaintiff’s appointment under the defendants by the defendants and contained in a letter of compulsory retirement with reference number ELGSC 993/66 of 18th August 2011 is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever. (b) A mandatory order on the defendants to re-instate the [claimant] to his employment with full entitlements from the date of termination of the appointment till judgment and thereafter. Accompanying the complaint are a 13-paragraphed statement of facts, the list of documents frontloaded (and copies of the documents later marked as Exhibits C1 – C13) and the list of witnesses, all dated 15th November 2011. The defendants entered appearance by filing their memorandum of appearance dated 20th December 2011 but filed on 1st February 2012. The preliminary objection of the defendants dated 5th January 2012 but filed on 1st February 2012 was heard and dismissed by the Court on 5th March 2012 as part of that filed in Suit No. NIC/LA/157/2011. Thereafter the defendants joined issues by filing their 21-paragraphed statement of defence dated 2nd March 2012 but filed on 5th March 2012. Accompanying the statement of defence are the list of documents to be relied on at the trial dated 2nd March 2012 (and copies of the documents latter marked as Exhibits D1 and D2), and the list of four witnesses dated 2nd March 2012 (together with their sworn depositions, all dated 5th March 2012). The claimant then filed his sworn witness deposition dated and filed on 20th April 2012 together with a reply to the statement of defence dated 25th March 2012 but filed on 20th April 2012. This instant suit (NIC/LA/160/2011) is one of six similar suits – the others are NIC/LA/157/2011, NIC/LA/158/2011, NIC/LA/159/2011, NIC/LA/161/2011 and NIC/LA/162/2011. The defendants in all these six suits are one and the same. The claims of the respective claimants against the defendants in all six suits are same. The counsel for the defendants in all six suits is the same. The only difference is that in three of these suits (NIC/LA/159/2011, NIC/LA/160/2011 and NIC/LA/162/2011), the counsel for the respective claimants is Dr. Akin Onigbinde, while in the other three suits (NIC/LA/157/2011, NIC/LA/158/2011 and NIC/LA/161/2011), the counsel for the respective claimants is Olabanjo Ayenakin Esq. Now, sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court (NIC) Act 2006 enjoins this Court to be flexible and less formal, while section 14 of the NIC Act enjoins this Court to do all such things as are necessary and will avoid multiplicity of suits. In this regard, all parties and their counsel agreed that all the directions and orders made in Suit No. NIC/LA/157/2011 together with the final judgment shall abide this and the other four sister cases. This was, however, not to affect the enrolment of separate judgments for the six cases, depending, of course, on the outcome of the present case. In fact on this ground, Dr. Akin Onigbinde was able to cross-examine the defence witnesses in Suit No. NIC/LA/157/2011. The claimant’s witness statement on oath dated and filed on 20th April 2012 is essentially in terms of the statement of facts. In the sworn deposition of 20th April 2012, the claimant, a Civil Servant, Nigerian of Ise-Ekiti Road, Ikere-Ekiti, testified as follows – 1. That I am the claimant in the suit herein and by virtue of which I am personally aware of the facts and circumstances of this case 2. That I was a Director of Administration attached to the Efon Local Government, Efon-Alaaye Ekiti, Ekiti State until the 18th August 2011 when the defendants purportedly retired me compulsorily. 3. That the first defendant is a Commission created under the law and vested with the responsibility of employing, promoting and disciplining of Local Government Staff in Ekiti State. 4. That the second defendant is the Chief Law officer of Ekiti State. 5. That I was appointed as Administrative Officer Grade VII by a letter reference No. CP.2420/34 of 6th September, 1989. 6. That I was appointed under the old Ondo State but had my appointment transferred to Ekiti State when same was created in 1996. 7. That on or about the 22nd January, 1992, my appointment was confirmed vide a letter reference No CP. 2420/52. 8. That by letters dated 25th November 1991, 25th October 1994, 28th April, 1998, 20th September, 2000, 26th January, 2004, 2nd February, 2005, and 14th January 2011, I was promoted to GL 09, GL 10, GL 12, GL 13, GL 14, 15 and GL 16 on acting capacity respectively. 9. That by a letter dated 7th June 2011 with reference No ELGSC 68 Vol. 1/184, I was directed by the first defendant to go on compulsory leave for no justifiably or tenable reason. 10. That in compliance with the said letter, I proceeded on the compulsory leave only for me to be issued another letter dated 18th August 2011 with reference No EGLSC 993/66 compulsorily retiring me. 11. That if I see all the documents referred to in paragraphs 5, 7, 8, 9 and 10 above I recognise them. 12. That upon the receipt of the purported letter of retirement, I instructed my Solicitor A. O. Okeya to give the defendants a pre-action notice and this was duly served on the defendants. 13. That my condition of service is governed and regulated by the Local Government Service Law and the said law confirms that my conditions of my service shall be equated with those obtaining for employees in the State Public Service. That is the Public Service Rules further regulates my appointment. 14. That under the Ekiti State Civil Service rules, there is no provision for examinations as a requirement for promotions or continuous stay in the civil service. 15. That the Civil service Rule does not make any provision for any ‘body’ in the name of “Civil Service Transformation Committeeâ€, which makes committee illegal. 16. That the purported examination conducted by the defendants is aimed at witch hunting the Claimant. 17. That I scored above 40% in the purported examination and was still compulsorily retired nonetheless. 18. That in all rules governing the service of the Claimant there is neither provision for an external examiner nor examinations. 19. That both the Local Government Service Law and the Public Service Rules were flagrantly flouted by the defendants when [they] arbitrarily terminated my appointment in the following ways i. As a senior officer, my appointment can only be terminated if prior query had been issued or served on me; and in this case, none was issued or served on me. ii. I was at no time invited to any panel and said I was not indicted or proved guilty of any wrongdoing prior the purported termination of my appointment. iii. My prior promotions have never been subjected to any written or oral test, and my conditions of service are not subjected to same. iv. The defendants have no power to terminate my appointment under the rules as the rules in fact do not provide for compulsory retirement. v. Notwithstanding the provisions of the Rules, the defendants compulsorily retired me from service despite the fact that I had not committed any offence or attained the compulsory age of retirement. The claimant then claimed the reliefs as per the complaint. The defendants had four witnesses. The first witness (DW1), Chief Dayo Fedipe a Civil Servant, of old Governor’s Office, Ado-Ekiti, Ekiti State, essentially deposed in the sworn deposition of 5th March 2012 as follows – 1. That I am the Honourable Commissioner for Local Government Affairs, Ekiti State, by virtue of which I am conversant with the facts and circumstances of this case and those deposed to herein are within my personal knowledge except otherwise stated. 2. That I know all the parties in this case 3. That I am aware that the claimant herein was a Director of Administration under the Ekiti State Local Government Service Commission, 4. That I am aware that the Ekiti State Government had embarked on Public Service reforms and by extension, reformation and reorganization of the Local Government Administration in Ekiti State. I shall rely on a copy of the letter written by the Head of Service, Ekiti State titled: “Ekiti State Local Government Reforms†and dated 13th May, 2011. 5. Pursuant to the above, objective and standard tests and interview (examination) were conducted by the 1st Defendant in a bid to do an overhaul and ensure sanitization of the Local Government Civil Service Commission. 6. That I know as a fact that I was a member of the Eight-Man Panel appointed by the Ekiti State Government to conduct the examination exercise referred above. 7. That I am aware that the Claimant was one of the officers that participated in the said examination exercise 8. That I am aware that after the conclusion of the examination exercise, the claimant scored 44.5% on the cumulative average of both the written and oral interview. I shall rely on a copy of the letter written by the Head Of service, Ekiti State Titled: “Review of Public Service Examination†and dated 12th July, 2011 as well as the results annexed thereto. 9. That the claimant, having scored below the initial approved cut-off marks (60%) and later reduced cut-off (50%) was compulsorily retired from the Ekiti State Local Government Service Commission. 10. That I know as a fact that the approved cut-off point was eventually reduced from 50% to 40% by the Governor, Dr Kayode Fayemi upon the intervention and plea of the National Union of Local Government Employees. 11. That I know as a fact that in spite of the magnanimity of the state Governor, the claimant was still unable to meet up with the cut-off point. 12. I know as a fact that the compulsory retirement of the claimant is in tandem with the Ekiti State Civil Service Commission Regulation and the Laws of Ekiti State of Nigeria. 13. That I know as a fact that all the Directors, including the claimant herein, who were compulsorily retired have received payment of three months’ salary in lieu of notice. The second defence witness (DW2) is Mr. Bunmi Famosaya, a Civil Servant of Governor’s Office, Ado-Ekiti, Ekiti State. His sworn deposition is also dated 5th March 2012. He essentially deposed as follows – 1. That I am the Head of Service of Ekiti State by virtue of which I am conversant with the facts and circumstances’ of this case and those herein deposed to are within my personal knowledge except otherwise stated. 2. That I know as a fact that upon the inception of the Dr. Fayemi-led Administration, there was a targeted policy of repositioning, re-engineering and refocusing of the Public Service for enhanced service delivery. 3. Sequel to the above, the Ekiti State Local Government Service Commission was also earmarked for restructuring and reorganization as a matter of deliberate policy of government. 4. That I know as a fact that in furtherance to the above, a committee known as the Civil Service Transformation Committee was set up to execute the Public Service Reforms Policy of the State Government. 5. That I know as a fact that part of the responsibilities of the Committee was to ensure efficient, effective and timely service delivery as against institutional indiscipline and incompetence that had ruptured the Ekiti State Local Government Service through a merit-based restructuring/reorganization reform exercise. I shall rely on a copy of the letter written by me titled: “Ekiti State Local Government Reforms†and dated 13th May, 2011. 6. That I know as a fact that as part of the restructuring/reorganization reform, it was discovered that there was a dire need for radical change in the top echelon of the Local Council’s bureaucracy at the levels of the Directors of Administration and Directors of Finance (Treasures) under the Ekiti State Local Government Service Commission. 7. That I know as a fact that the aforesaid Committee met on the 17th of May 2011 with a view to mapping out strategies for the actualization of her vision. 8. That I equally know that in order that the objectives and vision of the Committee be actualized, the Committee recommended that a rigorous process of written examination and oral interview be conducted among the said Directors on GL 15-16 under the Local Government Service Commission, including the claimant herein. 9. That in furtherance to the above, the Committee recommended that successful officers who scored above the stipulated cut-off point (60%) and later reduced mark (50%) in the written examination and oral interview be retained and promoted. While officers who scored below the cut-off point were to be compulsorily retired. 10. I know as a fact that the Committee recommended that the best three officers in the written examination and oral interview should be appointed as Administrative Secretaries (consolidated) and posted to key positions as Local Government Inspectors in-charge of the 3 Senatorial Districts in Ekiti State while other successful officers should be promoted to the next grade level. 11. That pursuant to the above recommendation and in a bid to transform the Local Government Service to a result-oriented one, forty-eight (48) Directors on GL-15 and above (including the claimant herein) were invited and participated in the written examination and oral interview conducted by Prof. Adamolekun, (a renowned administrator) led committee. 12. That I am aware that on the 7th of June, 2011, after the conduct of the written examination and oral interview and while awaiting the results, all the aforementioned 48 Directors including the claimant were notified via a letter dated 7th of June, 2011 to proceed on compulsory leave effective from 7th of June, 2011. 13. I know as a fact that out of the forty-eight (48) Directors that participated in the said written examination and oral interview only eleven (11) excluding the claimant herein scored 50% and above. 14. That I know as a fact that the eleven (11) successful Directors were recalled from leave and promoted as earlier stated above while the remaining thirty-seven (37) Directors including the claimant who scored below the cut-off point of 50% were asked to retire from service compulsorily. 15. That I am aware that the claimant scored 44.5% on the cumulative average of both the written examination and oral interview. I shall rely on a copy of the letter written by me titled: “Report of Public Service Examination†and dated 12th July, 2011 as well as the results annexed thereto. 16. I am also aware that on the 26th of July, 2011 the National Union of Local Government Employees (NULGE), hereinafter referred to as the Union, held a meeting with the State Governor (Dr. Kayode Fayemi) and pleaded for leniency on behalf of the thirty-seven (37) Directors, including the claimant and their subsequent re-absorption. 17. I am aware that the Ekiti State Government moved by the plea of the Union consequently agreed with the union on the concurrent satisfaction of the terms hereunder listed for the re-absorption of the successful (37) officers: a. reduction of the cut-off point from 50% to 40% in the written examination and oral interview; b. outstanding length of service as at 1st of August, 2011 should be five (5) years and above; c. satisfactory service records. 18. As a result of the above, only six (6) officers excluding the claimant were re-absorbed having scored above 40% and satisfied the other two conditions. 19. I know as a fact that the compulsory retirement of the Claimant is in accordance with the Ekiti State Civil Service Commission Regulation and the Laws of Ekiti State of Nigeria. 20. That I know as fact that all the Directors, including the Claimant herein, who were compulsorily retired have received payment of three months salary in lieu of notice. 21. That I depose to this written statement in good faith conscientiously believing same to be true and correct and in accordance with the provisions of the Oaths Act. The third defence witness (DW3) is Mr. Sunday Fatoba, a Civil Servant of the Local Government Service Commission, Ekiti State. His sworn deposition is also dated 5th March 2012. He essentially deposed as follows – 1. That I am the Permanent Secretary, Local Government Service Commission, Ekiti State by virtue of which I am conversant with the facts and circumstances of this case and those herein deposed to are within my personal knowledge except otherwise stated. 2. That I know as a fact that the Ekiti State Government had organized a program tagged: “the Ekiti State Civil Transformation Strategy†as part of her efforts to carry out improvement in the state. 3. That I know as a fact that the Civil Service Transformation Strategy had the objectives, inter alia of ensuring effective governance of the Civil Service, organizational efficiency, enhanced professional and result oriented Civil service, ethical and accountable workforce with an improved work culture, improved promotion and competence of Civil Servants. 4. Further to the above, there was also the need to extend the said strategy to the Local Government Service Commission by carrying out restructuring and reorganization at the top echelon of the Local Government Service and promotion where necessary. 5. That I know as a fact that in order that the objective of achieving competence at the top stratum of the Local Government Service be actualized, an open and transparent competitive selection process through written and oral examination was organized among Directors on GL 15 – 16, including the claimant herein. 6. That I am aware that after the conclusion of the examination exercise, the claimant scored 45.3% on the cumulative average of both the written and the oral interview. I shall rely on a copy of the letter written by the Head of Service, Ekiti State titled: “Report of Public Service Examination†and dated 12th July 2011 as well as the results annexed thereto. 7. That the claimant, having scored below the approved cut-off mark (50%) was retired from the Ekiti State Local Government Service Commission. 8. That I know as a fact that the approved cut-off point was eventually reduced from 50% to 40% by the Governor, Dr. Kayode Fayemi upon the intervention and plea of the National Union of Local Government Employees. 9. That I know as a fact that in spite of the magnanimity of the state Governor, the claimant though scored 44.5% was unable to meet up with the requirement of satisfactory record. 10. I know as a fact the successful Directors at the selection process were recalled from the compulsory leave which they had earlier embarked upon while unsuccessful ones were compulsorily retired. 11. I know as a fact that the compulsory retirement of the Claimant is in accordance with the Ekiti State Civil Service Commission Regulation and the Laws of Ekiti State of Nigeria. 12. That I know as a fact that all the Directors, including the Claimant herein, who were compulsorily retired have received payment of three months’ salary in lieu of notice. The fourth defence witness (DW4) is Hon. J. A. Ajayi, a Civil Servant of the Local Government Service Commission, Ado-Ekiti, Ekiti State. His sworn deposition is also dated 5th March 2012. He essentially deposed as follows – 1. That I am the Chairman, Local Government Service Commission, Ekiti State by virtue of which I am conversant with the facts and circumstances of this case and those deposed to are within my personal knowledge except otherwise stated. 2. That I know as a fact that upon the inception of the Dr. Fayemi-led Administration, there was a targeted policy of repositioning, re-engineering re-defining and refocusing of the public service for enhanced service delivery. 3. Sequel to the above, the Ekiti State Local Government Service Commission was also earmarked for restructuring and reorganization. 4. That I know as a fact that in furtherance to the above, a Committee known as the Civil Service Transformation Committee was set up to execute the Public Service Reforms Programme of the State Government. 5. That I know as a fact that part of the responsibilities of the Committee was to ensure efficient, effective and timely service delivery as against general indiscipline and incompetence that had ruptured the Ekiti State Local Government Service through a merit-based restructuring/reorganization reform exercise. I shall rely on a copy of the letter written by me titled: “Ekiti State Local Government Reforms†and dated 13th May, 2011. 6. That I know as a fact that as part of the restructuring/reorganization reform, it was discovered that there was a dire need for radical change in the top echelon of the Local Council’s bureaucracy at the levels of the Directors of Administration and Directors of Finance (Treasurers) under the Ekiti State Local Government Service Commission. 7. That I know as a fact that the aforesaid Committee met on the 17th of May 2011 with a view to mapping out strategies for the actualization of her vision. 8. That I equally know that in order that the objectives and vision of the committee be actualized, the Committee recommended that a rigorous process of written examination and oral interview be conducted among the said Directors on GL 15-16 under the Local Government Service Commission, including the claimant herein. 9. That in furtherance to the above, the Committee recommended that successful officers who scored above the stipulated cut-off point (50%) in the written examination and oral interview be retained and promoted. While officers who scored below the cut-off point were to be compulsorily retired. 10. I know as a fact that the Committee recommended that the best three officers in the written examination and oral interview should be appointed as Administrative Secretaries (consolidated) and posted to key positions as Local Government Inspectors in-charge of the 3 Senatorial Districts in Ekiti State while other successful officers should be promoted to the next grade level. 11. That pursuant to the above recommendation and in a bid to transform the Local Government Service to a result-oriented one, forty-eight (48) Directors on GL-15 and above (including the Claimant herein) were invited and indeed participated in the written examination and oral interview conducted by Prof. Adamolekun, (a renowned administrator) led committee. 12. That I am aware that on the 7th of June, 2011, after the conduct of the written examination and oral interview and while awaiting the results, all the aforementioned 48 Directors including the claimant were notified via a letter dated 7th of June, 2011 to proceed on compulsory leave effective from 7th of June, 2011. 13. I know as a fact that out of the forty-eight (48) Directors that participated in the said written examination and oral interview only eleven (11) excluding the claimant herein scored 50% and above. 14. That I know as a fact that the eleven (11) successful Directors were recalled from leave and promoted as earlier stated above while the remaining thirty-seven (37) Directors including the claimant who scored below the cut-off point of 50% were asked to retire from service compulsorily. 15. That I am aware that the claimant scored 44.5% on the cumulative average of both the written examination and oral interview. 16. I am also aware that on the 26th of July, 2011 the National Union of Local Government Employees (NULGE), hereinafter referred to as the Union, held a meeting with the state Governor (Dr. Kayode Fayemi) and pleaded for leniency on behalf of the thirty-seven (37) Directors, including the claimant and their subsequent re-absorption. 17. I am aware that the Ekiti State Government moved by the plea of the Union consequently agreed with the Union on the concurrent satisfaction of the terms hereunder listed for the re-absorption of the successful (37) officers: a. reduction of the cut-off point from 50% to 40% in the written examination and oral interview; b. outstanding length of service as at 1st of August, 2011 should be five (5) years and above; c. satisfactory service records. 18. As a result of the above, only six (6) officers excluding the claimant were re-absorbed having scored above 40% and satisfied the other two conditions. 19. That I know as a fact that all the Directors, including the claimant herein, who were compulsorily retired have received payment of three months salary in lieu of notice. 20. That I know as a fact that the compulsory retirement of the Claimant is in accordance with the Ekiti State Civil Service Commission Regulation and the Laws of Ekiti State of Nigeria. 21. That I depose to this written statement in good faith conscientiously believing same to be true and correct and in accordance with the provisions of the Oaths Act. At the trial of the matter, all the sworn depositions of the witnesses were deemed adopted; and given the agreement of the parties, the cross-examination and re-examination of the witnesses undertaken in Suit No. NIC/LA/157/2011 was equally deemed to apply to this case. The Court then ordered the parties to file their respective written addresses starting with the defendants. This they did. The written address of the defendants is dated 19th June 2012 but filed on 20th September 2012. That of the claimant is dated 5th October 2012 but filed on 8th October 2012. The defendants filed a reply on points of law. It is dated 22nd October 2102 but filed on 23rd October 2012. These respective addresses were deemed adopted. The defendants framed two issues for the determination of the Court, namely – 1. Whether the claimant’s claim is not liable to be dismissed having failed to prove his case. 2. Whether the claimant’s claim is not caught by estoppel thus liable to be dismissed. Regarding issue 1, the defendants contended that a cursory look at the General Form of Complaint as well as the statement of fact filed by the claimant shows that the reliefs sought therein are principally declaratory and, by reason thereof, they can only succeed on the strength of his case and not on the weakness or even admission of the defendant, referring to Akinyele v. Afribank Plc [2006] All FWLR (Pt. 303) 722 at 732. That it is trite law that a claimant who approaches the court for relief has a duty to prove that he is entitled to such relief. In other words, he has the burden of proof which he must discharge on the preponderance of evidence led by him to prop his pleaded facts before the other party would be called upon to lead evidence in defense. That this principle of law is well espoused in the case of Orji v. Dorji Textiles Mills (Nig) Ltd [2010] FWLR (Pt. 519) 999 at 1014 D – G, where His Lordship, Tobi, JSC enthused as follows – The burden is on a plaintiff to show that he is entitled to the reliefs sought. That burden does not shift to the defendant…After all, a plaintiff should not rely on the weakness of the case of a defendant but rather on the strength of his own case as proved in court…Accordingly, a plaintiff who fails to prove the relief or reliefs sought goes home without victory. There are no two ways about. Our adjectival law is as constant as that, like the sun rising from the east and setting in the west. The defendants then submitted that the claimant’s declaratory relief is liable to be dismissed having failed to prove his entitlement to same. Also, that the claimant’s mandatory order which is consequential to and absolutely dependant on the success of the declaration is bound to be refused, ipso facto; referring to Yusuf v. Co-op Bank Ltd [1994] 7 NWLR (Pt. 359) 676 at 696 to the effect that where a claim or relief flows from the declaratory reliefs sought and the declarations are refused, it follows that the consequential claim or reliefs must also fail. To the defendants, to demonstrate the failure of the claimant to prove his entitlement to the declaration claimed, it is pertinent to examine the grouse of the claimant for instituting this action. As distillable from the General Form of Compliant as well as the statement of facts filed in this case, the complaint of the claimant is against the processes embarked upon by the defendants, which culminated in his compulsory retirement. In other words, the claimant considers the action of the defendants retiring him compulsorily wrongful, illegal, unconstitutional, null and void having allegedly failed to follow the law. That against this backdrop, it is pertinent to examine some provisions of the laws that have bearing with the employment of the claimant and the power of the defendants in respect thereto. For ease of reference, the defendants reproduced the following provisions – Clause 5 of the “offer of appointment†dated 17th August, 1989 (Exhibit C1) provides thus – You will not directly or indirectly engage or be concerned in any other service or business whatsoever or receive commission or profits of any kind but shall devote the whole of your time and attention to the service of the government. You will comply with the instructions of the Government for the time being in force in so far as the same are applicable (emphasis is the defendants’). Clause 02508 of the Local Government Staff Rules of Ekiti State, revised Edition, 2010 provides thus – Examination and interview shall be conducted for applicants by the Local Government Service Commission Commissioners. The Local Government Service Commission may employ the services of a consultant if it deems fit to do so. Clause 05308 of the Local Government Staff Rules provides – An employee whose appointment is terminated as a result of re-organization or on grounds of financial stringency shall be given one calendar month’s notice or alternatively one month’s salary in lieu of notice and shall be to any leave for which he may be eligible. Clause 05532 (2) of the Local Government Staff Rules provides – In special circumstance and with the approval of the Permanent Secretary, Local Government Service Commission, an established employee may retire or be called upon to retire before reaching the age of sixty, provided that when ordered to retire or retiring before the age of sixty, the giving of three months notice shall be required. Clause 12204 of the Local Government Staff Rules provides – …With the approval of the Permanent Secretary an established employee shall retire or be called upon to retire after reaching the age of sixty years or has put in thirty-five years in service; but when ordered to retire or if the employee retires before the age of sixty, the giving of one month notice or three months notice (whichever) is applicable shall be required: Employee that is compulsorily retired shall be paid three months salary in lieu of the notice. That from the above exposition of the applicable provisions of the laws, it is crystal clear that the defendant’s action that culminated in the compulsory retirement of the claimant is justified and laced with legal backing. Firstly, clause 5 of Exhibit C1 provides that the claimant shall abide by the directives/instructions of the State Government for the time being in force. It is also distillable from clause 05308 of the Local Government Staff Rules that the defendants have the power to re-organize the Civil Service for efficiency and service delivery. To the defendants, exercising their power under the above provisions and realizing the general inefficiency and administrative failure in the Public Service of Ekiti State, the Government of Ekiti State set up a Transformation Committee to conduct both written and oral examination for category of Ekiti State Civil Servants which include the claimant in order to evaluate their usefulness and efficiency and to give every Civil Servant involved a level playing field to assert their efficiency or otherwise. That Exhibit D1 is instructive in this respect. The defendants continued that the enormous responsibilities put on the Director of Administration (which the claimant was) by section 38(a) – (j) of the Local Government Administration Law 1999 make the constant exercise of the power by the Government as provided for in clause 5 of Exhibit C1 inevitable. It is submitted with respect that the claimant as a Director of Administration who failed to pass the ‘Efficiency Test’ conducted by the Committee cannot challenge the action of the defendants retiring him compulsorily for the purpose of re-organization of the Civil Service. The defendants went on to argue that it is instructive to note at this juncture that the action of Ekiti State Government setting up a Committee for the purpose of conducting examination for the category of Civil Servants which include the claimant cannot be faulted as same is in line with the provision of clause 02508 of the Local Government Staff Rules of Ekiti State, revised Edition, 2010 which even empowers the Government to engage the service of a consultant for the purpose. Therefore, that following the outcome of the examination conducted by the Committee set up by the Government of Ekiti State wherein the claimant failed to justify his continued relevance and efficiency in the Public Service of Ekiti State, the defendants, in compliance with the provisions of clauses 05532(2) and 12204 of the Local Government Staff Rules, required the claimant to retire and paid him three months salary in lieu of notice. To the defendants, at the risk of pedantry and flowing from the above submissions, the action of the defendants requiring the claimant to retire compulsorily because his service was no longer required cannot be assailed as same was taken in line with the clear and unambiguous provisions of the laws. And the settled principle of interpretation is that simple and ordinary meaning of words used in legal instruments should be given to them while interpreting them, referring to Balonwu v. Governor of Anambra State [2010] FWLR (Pt. 503) 1206 at 1236 A – B and Olaniyi v. Soji [2010] FWLR (Pt. 551) 1576 at 1595 F – G on this principle of law. Regrettably though, that “the forcing of an employee to retire before his age of retirement may be for a variety of reasons such as ill-health, redundancy, re-organization, retrenchment, un-productivity, etc provided by the laws upon which the employer can require the employee to retire compulsorily make the claimant’s situation unsalvageableâ€, citing P.H.M.B v. Ejitagha [2000] 11 NWLR (Pt. 677) 154. Shorn of pugnacity, the defendants submitted that the simple requirement of the law in severing the relationship between the claimant and the defendants for the purpose of re-organization in the Civil Service is the giving of three months notice or the equivalent salary in lieu of notice. That this, the defendants complied with as evidenced in Exhibit C11 (the letter of the compulsory retirement dated 18th August 2011) and confirmed by the claimant’s evidence under cross-examination. In concluding issue 1, the defendants submitted that the claimant failed to prove his entitlement to the reliefs sought in this case having failed to show how the action of the defendants that cumulated to his compulsory retirement was taken contrary to the law, praying the Court to resolve this issue against the claimant and in favour of the defendants. Regarding issue 2 i.e. whether the claimant’s claim is not caught by estoppels thus liable to be dismissed, the defendants submitted that without much ado, it is distillable from the circumstances of this case that the claim of the claimant is caught by the web of estoppel thus, liable to be dismissed. That it is an age long principle of estoppel that when a party by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing, referring to Awonusi v. Awonusi [2007] FWLR (Pt. 391) 1642 at 1659 F – H. The defendants continued that it is apparent from the circumstance of this case that the defendants, having discovered the redundancy in the Civil Service of Ekiti State issued a blue print in form of Exhibit D1 wherein a Committee was put in place to conduct examinations, both written and oral for the concerned officers to sanitize the system. The claimant, including other officers, was adequately notified of these examinations as confirmed by the claimant’s evidence under cross-examination. The participation of the claimant in the said examinations is also a testimony of his acceptance of the competency of the Committee to conduct the examination and to the validity of examinations. That it is, therefore, too late for the claimant to shut the stable’s door when the horse had already booted. Put differently, that it would be difficult if not impossible for the claimant to scale the hurdle of estoppel by conduct in this circumstance having surrendered to the competency of the Reform Committee and participated in the examinations. It is a common knowledge world over that examination is usually meant to separate ‘wheat’ from chaff. Accordingly, the claimant cannot claim oblivion of the essence of the examinations as at the time he was participating in the examination. To the defendants, the claimant had an ample opportunity to challenge the competency of the Reform Committee to conduct any examination by approaching the court for a restraining order against the Committee. He could also decline participation in the examination conducted by the Committee in demonstration of his protest against the competency of the Committee and the validity of the examination conducted by it. The defendants then submitted that the claimant, having failed to challenge the competency of the Reform Committee to conduct the said examination and having participated in the examination, has by his conduct caused the defendants to believe that he has surrendered to the competency of the Reform Committee and by implication promised to accept the outcome of the examinations as valid. To the defendants, assuming without conceding that the Reform Committee lacks the competence to conduct the said examination, thus making the result of the examination nothing to go by, the failure of the claimant to challenge the competence of the Committee at the appropriate time coupled with his participation in the said examination is, under the principle of estoppel, a conduct laced with promise and assurance which was intended to affect the legal relationship between the claimant and the defendants, to the effect that the claimant would not afterward challenge the competence of the Committee and the validity of the examination. That the claimant must be made to accept the legal relationship as modified by his conduct in failing to challenge the legality of the Committee and in participating in the examination, that is, the outcome of the examination and the recommendation thereon. That this position of the law is brilliantly demonstrated in the case of University of Ilorin v. Oduleye [2007] FWLR (Pt. 371) 1651 at 1664 C – E where the Court of Appeal quoted the dictum of Ogwuegbu, JSC in the case of Humphrey Ibe v. Harding Osuji [1998] 10 SCNJ 75 at 82 thus – The principle of estoppel by conduct is that where one party has, by his words or conduct, made to another a promise or assurance which was intended to affect the legal relations between them and to be acted upon, accordingly, then, once the other party had taken him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept their legal relations as modified by himself even though it is not supported in point of law by any consideration but only by his word or conduct (emphasis is the defendants’) The defendants continued that it is interesting to note that the claimant would not have instituted this action challenging the legality of the Reform Committee to conduct the examination and the result there from if he had scored very well in the examination and thus be retained and promoted like a drowning man who would grasp at anything, even straw, to remain afloat. That another fact that makes the claim of the claimant consumed by the doctrine of estoppel by conduct is his acceptance of payment of three months’ salary in lieu of notice. That as distillable from the pleadings and the evidence led thereon, it is not in doubt that the defendants in compliance with the laws as argued under issue 1 paid the claimant three months’ salary in lieu of notice. The claimant confirmed the receipt of the payment under cross-examination even though he said they were forcefully paid. That what is beyond per adventure here is that the defendants paid the three months’ salary in lieu of notice to the claimant in compliance with the laws to severe his employment and the claimant accepted it wholeheartedly when he had the opportunity to reject and return it back to defendants. That this conduct that is the acceptance of the payment by the claimant or his failure to reject and return the said salary to the defendants in demonstration of his disagreement with the defendants’ action has led the defendants to believe in a particular state of affairs that the claimant has accepted his compulsory retirement and would not afterwards turn around to deny it. That this claimant’s conduct has led the defendants to act to their detriment by parting with their money (three months’ salary) and it would be unconscionable for the claimant to deny encouraging the defendants to so act, referring to Kwara Polytecnic Ilorin v. Oyebanji [2008] FWLR (Pt. 447) 141 at 191 B – D, where His Lordship Agube, JCA opined as follows – I also agree with his reasoning that by the doctrine of estoppel per conduct and the cases of Tika-Tore v. Abina [1973] 4 SC 63 and Morgate Co. Ltd v. Twitchings [1975] 3 All ER 314 at 325/3, etc. relied upon by him, the appellants having by their words and conduct led the respondent to believe in a particular state of affairs, it would be unconscionable for the appellants to deny that they encouraged the respondent to act to his detriment. To the defendants, undoubtedly, the foundation of the claimant’s case is not only rusty at law, but equally corroded in equity on the footing of which the case must crumble. That to put it with precision, equity aids the vigilant and not the indolent like the claimant in this case who has unfortunately acquiesced and lost the opportunity to challenge the act of the defendants in this case. Premised on the above submissions and the cited authorities, the defendants urged the Court to resolve this second issue in favour of the defendants and dismiss the claimant’s claim. In conclusion, the defendants urged the Court to dismiss the claimant’s case in its entirety same being frivolous, vexatious and lacking in merit in general and for the following reasons in particular – 1. The claimant failed to show or demonstrate how the defendants’ action to compulsorily retire him fouls the laws and by extension failed to prove his entitlement to the reliefs sought. 2. The defendants are allowed under the law to re-organise the Civil Service and if need be to compulsorily retire an employee as a result of that re-organisation. 3. That a level play ground was availed all the participants in the examination including the claimant thus dispelling the insinuation of malice against the claimant by the defendants. 4. The claimant had notice of the examination and indeed participated in the examination without any challenge to the competence of the Reform Committee and the validity of the examination, hence he is estopped from challenging same now. The defendants then adopted all the above submissions/arguments and the authorities cited as their submissions/arguments and authorities applicable to the other two sister cases i.e. Suits No. NIC/LA/159/2011 and NIC/LA/162/2011 filed respectively by Mr. G. O. Asubiojo and Mr. M. A. Jegede. In reaction, the claimant framed two issues for the determination of this Court, namely – 1. Whether the compulsory retirement of the claimant was not in violation of his conditions of service. 2. Whether the Civil Service Transformation Committee has the competence to recommend procedures that consequently led to the retirement of the claimant. The claimant then went on to outline three issues that are not disputed, namely – a) It is not disputed that Civil Service Rules, Local Government Service Law and Local Government Staff Regulations regulate the claimant’s appointment. b) It is not disputed that the claimant was given no query, had no panel set up to discipline him and he committed no offence. c) It is not disputed that the claimant scored above 40 per cent in the purported examination done by the faceless Civil Service Transformation Committee. Regarding issue 1 i.e. whether the compulsory retirement of the claimant was not in violation of his conditions of service, the claimant submitted that in view of the evidence before this court, the termination of the claimant’s appointment is in flagrant violation of the Civil Service Rules (CSR), Local Government Service Law and Local Government Staff Regulations otherwise known as Local Government Staff Rules. That in law, the starting point in the determination of whether an employee’s appointment was rightfully terminated or whether he was rightfully retired from service is for the trial court to critically assess the claimant’s conditions of service. That looking at the statement of facts and the reply to the defendant’s statement of defence, the claimant pleaded uncontrovertibly that the CSR, Local Government Service Law and Local Government Staff Regulations otherwise known as Local Government Staff Rules govern his appointment. That obviously, where a party pleads a fact and the other, who has the opportunity to controvert the fact, fails or neglect to so do, such a fact is no longer in issue and the alleging party is relieved of the burden of proving same, referring to Nwaranta v. Egboka [2006] All FWLR (Pt 338) 768 at 772 Ratio 6 where it was stated that – The court should take as the truth any piece of evidence that was not in any way contradicted or challenged, particularly when the court has no cause to disagree with such evidence. The claimant also referred the Court to F.I.P.D.C Nig Limited v. E.A.S Ltd [2006] 6 NWLR (Pt. 975) 2 at 5 Ratio 6 and Lufthansa Airlines v. Odiese [2006] 7 NWLR (Pt. 975) 49 Ratio 12. To the claimant, in the absence of any contradiction to the pleading of the claimant controverting the fact that his appointment is governed by the Civil Service Rules, it is glaring that the Civil Service Rules or the Public Service Rules govern the appointment of the claimant. At this juncture, that it is pertinent to assert that the claimant’s employment enjoys statutory flavor in view of the uncontradicted fact that the claimant’s appointment is governed by Civil Service Rules, Local Government Service Law and Local Government Staff Regulations. That in Alhassan v. A.B.U. Zaria [2010] All FWLR (Pt 538) 962 at 992 D – E the court held inter alia – Where the conditions for appointment or determination of a contract of service are governed by the provisions of a statute, such that a valid determination of appointment is predicted on satisfying such statutory provision, such is said to enjoy protection. The contract is determinable not be the parties but only by the statutory preconditions governing its determination. Furthermore, that in Iderima v. Rivers State Civil Service Commission [2005] All FWLR (Pt. 285) 431, the Supreme Court held inter alia that the Public Service Rules has constitutional force and takes the contract therein above those of master and servant relationship. That the implication of this judicial pronouncement is that once it is established that the appointment of an employee is governed by instruments, documents or conditions of service that are statutory like the Civil Service Rules, Local Government Law and the Local Government Staff Regulations otherwise called the Local Government Staff Rules, such as an employee cannot be removed at the whims and caprices of the employer or does not hold his appointment at the mercy of his employer but such an employer can only have his appointment terminated in strict compliance with the conditions of service. The Court was then referred to the additional cases of Shitta Bey v. Federal Public Service Commission [1981] 1 SC 26, Olaniyan v. University of Lagos (No 2) [1985] 2 NWLR (Pt. 9) 559 and Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 34)162. To the claimant, none of the provisions of the Ekiti State Civil Service provides for compulsory retirement; and the Local Government Service Law of Ekiti State does not have this provision either. Apparently, that the compulsory retirement of the claimant is patently contradictory to these laws. However, that going by the pleading of the defendants, it seems the defendants are relying on the ground of general inefficiency in compulsorily retiring the claimant as contained in Rules 05301 to 05310 of the Local Government Staff Rules. To the claimant, however, even if the defendants placed reliance on this Rule, it failed woefully and grossly to comply strictly with the mandatory provision of the Rule in many ways. The claimant went on to argue that the first hurdle to be passed in removing an officer for inefficiency is contained in Rule 05301 which states that the employee’s superior officer who notices such should bring this to the notice of the employee and record this in writing. That this was never done. Furthermore, that the second hurdle is contained in Rule 05302, which states that – Before proceeding for removal of an employee for general inefficiency may be commenced, he/she must have been warned on three occasions in writing. That the claimant pleaded uncontrovertedly that he was never warned of inefficiency and this was corroborated by the defendants’ witnesses. That the third hurdle is contained in Rule 05304, which requires that the employee must be given notice of termination of appointment. The claimant then submitted that all these three requirements were violated. That when an employment enjoins statutory flavor, a breach of one rule is a breach of all. There must be strict compliance with the rules, referring to Iderima v. Rivers State Civil Service Commission [2005] All NLR 206 at 221 E – F. To the claimant, the reliance placed by the defendants on clause 5 of the offer of appointment letter of the plaintiff in that the plaintiff has been told to comply with government’s instructions from time to time is misconceived and misapplied. That an employee both in common law and under the statute is only bound to follow all lawful instructions from the employer. More so, the defendants have not shown any order or instruction the claimant failed to follow. That if the action of the defendants in terminating the appointment of the claimant is what the defendants called ‘instructions’, then that is a colossal abuse of language and an effort rooted in illegality and futility. The claimant went on that there is nothing like the Local Government Staff Rules of Ekiti State, Revised Edition 2010. But there is the Local Government Staff Rules of Ekiti State, November 2008. However, that since the provisions of the two are almost the same, the claimant will not make it an issue of it. It is the submission of the claimant that Rule 02508 relied upon by the defendant in arguing that the Local Government Service Commission may employ the services of a consultant it deems fit to do so is unhelpful to the defendants. This is because the purported or kangaroo consultant employed in the case herein was employed by the Civil Service Transformation Committee which has no such competence or which is unknown under the law. Obviously everything done or recommended to be done by the said Committee having not been known by the extant laws will amount to a nullity. Thus the said consultant is incompetent to examine the claimant. To the claimant, the defendants placed much reliance on the fact that the claimant was given money in lieu of notice and that the defendants have power to retire his employee before the retirement age of sixty. That apart from the fact that the defendant quoted these Rules out of context, the defendants deliberately shut their eyes to the holistic provisions of these Rules. These rules are not in isolation, they are to be read with their sister rules. Be that as it may, that the issue of notice notwithstanding the fact that it is contained in the Rules, the Court of Appeal has held in a number of decided authorities that an employee whose employment is protected by statute cannot have his appointment terminated or compulsorily retired under this guise. That in Alhassan v. A.B.U. Zaria [2010] All FWLR (Pt 538) 962 at 1004 A – B, it was held inter alia that – Where an employment has statutory flavor, the mere acceptance of salary in lieu of notice by the employee cannot validate the invalid and void act of termination of his employment done contrary to the stipulation of the laws and regulations governing such appointment. The claimant continued that apparently, since the claimant’s employer never from the beginning gave him notice of inefficiency and he was not warned three times as required by the rules, the actions and inactions of the defendants from the beginning are void and any purported defence based on collection of salary in lieu of notice is of no moment. Similarly, that in Adeniyi v. Governing Council, Yaba College of Technology [1993] 6 NWLR (Pt 300) 426, the Supreme Court held that the appellant’s collection of three month’s salary in lieu of notice of retirement did not render valid the invalid and void act of unlawful and wrongful retirement. And in Alhassan v. A.B.U. Zaria [2010] All FWLR (Pt. 538) 962 at 975 Ratio 11, it was held inter alia that – In public employment, where the employee is qualified by appointment for a permanent and pensionable position and has actually satisfied the conditions, there should be in the interest of justice, a presumption that the employment cannot be terminated by mere notice but should be terminable only for misconduct or other specific reasons. Where employee’s employment is definitely a public employment, even if not yet confirmed, should not be terminated merely because the appellant is not yet confirmed but should be on proven misconduct or other specified reason. The claimant went on to submit that in law, once a court has come to the conclusion that the appointment of an employee is statutorily flavored, and that the rules governing such an employment has been breached, the necessary order the court has to make is that of reinstatement and payments of the employee’s entitlements, citing Adefemiwa v. Osun State College of Education, Ilesa [2009] All FWLR (Pt. 456) 1860 at 1862 Ratio 4 where it was held – “…in other words, having held that the appellant’s employment had statutory flavor and that his dismissal by the respondent was unlawful, null and void, the lower court should have gone one step further and made the order for his reinstatement…without prejudice to his entitlement and promotion, which might have accrued to him since…when he was purportedly dismissed by the respondent. That in Kwara State Civil Service Commission v. Abiodun [2009] All FWLR (Pt. 493) 1315 at 1367 D – E, the Court held inter alia that – Once the dismissal of public officers as the respondents has been declared null and void, it is as if the respondents were never dismissed and their contract of employments which was in the circumstance unilaterally repudiated still subsists and they were/are entitled to be restored to their status quo ante. Also that in Governor, Kwara State v. Ojibara [2007] All FWLR (Pt. 348) 864 at 869 Ratio 4, it was held that – An improper removal from an office protected by law would be deemed a null act…The consequence of that pronouncement is that the civil servant was always still is a civil servant. The claimant went on that the Court in Governor of Kwara State v. Ojibara (supra) at page 877 paras H – B further stated inter alia that – Reinstatement involves putting the specified person back in law and in fact in the same position as he occupied in the undertaking before the employer terminated his employment. The natural and primary meaning of to ‘reinstate’ as applied is to (ex hypothesis without justification) is to replace him in the position from which he was dismissed and so to restore the status quo ante before the dismissal. The claimant then referred the Court to the following celebrated cases for further elucidation: Shitta Bey v. Federal Public Service Commission [1981] 1 SC 26, Olaniyan v. University of Lagos (No 2) [1985] 2 NWLR (Pt. 9) 559 and Eperokun v. University of Lagos [1986] 4 NWLR (Pt. 34) 162. The claimant concluded on this issue by urging the Court to resolve the issue in favour of the claimant. Regarding issue 2 i.e. whether the Civil Service Transformation Committee has the competence to recommend procedures that consequently led to the retirement of the claimant, the claimant contended that a critical look at the defendants’ pleadings show that the whole exercise which culminated in the compulsory retirement of the claimant emanated from the act, conduct and recommendations of the so called Civil Service Transformation Committee, referring to paragraphs 2 to 10 of the defendants’ statement of defence. That succinctly put, the Civil Service Transformation Committee recommended that written and oral interviews be conducted for the claimant and on its own the Committee prescribed a cut-off mark. According to the defendants, the claimant was compulsorily retired having failed to meet the stipulations of the Committee. A close look at Exhibit D1 shows that the purported Committee was put in place to execute a hatchet man’s agenda. Paragraph iii of the said exhibit states that the Directors of Administration of which the claimant is one, had overstayed their usefulness. It further shows that the Committee had concluded its intention even before it worked. That this justifies the claimant’s claim that the results of the Committee were concocted. The claimant then raised these pertinent questions: is the creation of this Committee justified by the claimant’s conditions of service? Can a faceless committee of this nature recommend procedures for the retirement of the claimant? Are the procedures prescribed by the Committee in tandem with the provisions of the claimant’s conditions of service? In answer, the claimant submitted that the creation of the Committee is alien to the claimant’s conditions of service; the Committee has no competence to prescribe procedure for the retirement of the claimant and it has no competence to prescribe procedures that are contrary to the conditions of service of the claimant. To the claimant, the implication of the incompetence of the act of the defendants is that the whole exercise put in place by the Committee is not only a nullity and void but the same is a ruse and a charade, and the Court has the competence to set same aside, citing Iderima v. Rivers State Civil Service Commission [2005] All FWLR (Pt. 285) 431. That in Federal Medical Centre, Ido-Ekiti v. Olajide [2011] 11 NWLR (Pt. 1258) 256 at 284 E – F, the court held among others that anybody or person who is not empowered under the conditions of service to do an act but does the act will render any termination of appointment emanating from same as incompetent. Therefore, since the Committee as well as its act flagrantly contradicts the claimant’s conditions of service, the claimant urged the Court to set aside the retirement and hold that same is void. The claimant continued that the issue of estoppel raised by the defendants is not an issue for determination, but he will nevertheless react to same. To him, setoppel is an equitable principle and in law a party who wants to raise estoppel must plead same. That the defendants just woke up in the middle of the suit and are conjuring estoppel. Furthermore, that the totality of the submission made by the defendants does not have the semblance of any form of estoppel known to law. Be that as it may, that on the authority of Adeniyi v. Governing Council Yaba College of Technology [1993] 6 NWLR (Pt. 300) 426 and Alhassan v. ABU (supra) mere acceptance to sit for an examination made by an illegal body or Committee cannot by any stretch of imagination convert the illegality to legality. The claimant went on to submit he did not act or omit to do any act which induced the defendants to take the position they did. At least, that the defendants have not shown that the claimant induced them to set up the Committee. In putting this matter to rest we would like to rely on the Supreme Court’s decision of Nsirim v. Nsirim [2002] FWLR (Pt. 96) 433, which states inter alia that – …it needs be restated that where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different sate of things as existing at the time. This is how the rule in estoppel by conduct otherwise known as estoppel by matter in pais has been stated. To the claimant, the time honoured decision of Lord Denning of the English House of Lords in Macfoy v. UAC [1961] 3 WLR 1405 will come in handy at this point. The decision is to the effect that – If an act is void, then it is in law a nullity. It is not only bad but incurable bad. There is no need for an order of court to set aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. That Honourable Justice Coker, J.S.C, in Alhaji Y. S. O. Bello, etc v. the Diocesan Synod of Lagos, etc [1973] 3 ECSLR 330, approved the dictum of Lord Denning in the Macfoy’s case. The claimant then submitted that the terms of his employment are governed by statutes which do not make provision for or recognize anybody, organization or group under the guise of “Civil Service Transformation Committeeâ€. That from inception all the actions of the “Civil Service Transformation Committee†were void and of no effect and nothing can be placed on it. To the claimant, the defendants do not even recollect that by their pleadings and exhibits the claimant passed the kangaroo exams. That he alleged that he even scored more than he was given and the defendant said nothing about this. The claimant then urged the Court to resolve this issue in his favor. In conclusion, the claimant submitted that his compulsory retirement is unjustifiable as same cannot be supported by the provisions of his conditions of service. He urged the Court to resolve all the issues in this suit in his favour and grant the claim in its entirety. In their reply on points of law, the defendant submitted that contrary to the submission of the claimant, the compulsory retirement of the claimant by the defendants is rooted in clauses 05532(2) and 12204 of the Local Government Staff Rules as can be seen in the use of the phrase “…when ordered to retire or retiring before the age of sixty†in both clauses. That it is obvious that the claimant can be ordered to retire without much ado; and so it is not necessary that the word ‘compulsory’ as insinuated by the claimant in his address must be used in the Rules before the power to compulsorily retire the claimant can be invoked. Furthermore, that the retirement of the claimant was in compliance with the Rules as the claimant was aware of the Civil Service Reform Agenda of the defendants which is to eliminate inefficiency and redundancy that had characterized the civil service in the state. The claimant, including other civil servants in the state, is aware of the zero tolerance of the State Government to this inefficiency. And having failed to justify his continued relevancy in the system, the claimant was paid three months salary in lieu of notice as required by the rules to retire him. Therefore, contrary to the submissions of the claimant, the defendants did comply with the provisions of the Rules in retiring the claimant. The defendants continued that it is obvious that the claimant misconstrued the reliance of the defendants on clause 5 of the offer of appointment letter. For the sake of clarity, the reliance and submissions of the defendants on the said clause 5 is to the effect that the Governor is empowered to give instruction and or directive with the view to ensuring efficient service delivery in the Civil Service and the claimant is duty bound to follow such instructions. Therefore, the relevance of that clause 5 to this case is that the Governor gave instruction to reform the Civil Service in the State which culminated in testing the efficiency of Civil Servants including the claimant via oral and written examinations. The claimant followed this instruction of the Governor by participating in the exercise; he cannot, therefore, be allowed to turn back to challenge the authority of the Governor in that respect and the outcome of the exercise. Regarding the submission of the claimant on Rule 02508 to the effect that the employment of the consultant was by an incompetent body not known to law, the defendants argued that such submission is not supported by the pleadings, nor was evidence led in this case. In fact, that paragraphs 2 and 3 of the statement of defense bear testimony to the contrary that the consultant was appointed by the Committee. It is apparent from the said paragraph of the statement of defense that the consultant was appointed by the defendants and not the Committee. Interestingly too, that these paragraphs were not denied by the claimant in their reply to the statement of defense. It is trite law that what the claimant fails to aver in his reply to the statement of defense cannot be made up in the written address of his counsel. The defendants then urged the Court to discountenance the submissions of the claimant’s counsel in that regard. The defendants went on that the argument of the claimant as well as the authorities cited regarding statutorily protected employment is misplaced and not relevant to this case. This is because the authorities cited therein are not on all fours with the case at hand. In other words, the authorities are distinguishable from the case at hand. In all, the defendants urged the Court to discountenance the argument of the claimant in respect of issue one as formulated in his address and to resolve the said issue against him as his compulsory retirement by the defendants is not in violation of his conditions of service. On the submissions of the claimant regarding issue 2, the defendants argued that contrary to the impression created by the claimant in his address, the Committee, having been engaged as consultant in line with the provision of the Rules only made recommendations which were ratified by the defendants and carried out in line with the Rules. That Exhibits C10 and C11 which are letters of compulsory leave and compulsory retirement respectively belie the argument of the claimant that he was compulsorily retired by the act and conduct of the Committee. The fact that the Committee was engaged as consultant in accordance with the Rules makes its recommendations carried out by the defendants which led to the compulsory retirement of the claimant unassailable in law. In effect, that the cases of Iderima v. Rivers State Civil Service Commission and Federal Medical Centre v. Olajide cited by the claimant are inapposite to this case. On the submissions of the claimant regarding the issue of estoppel, the defendants submitted that a careful reading of paragraphs 8 and 18 of defendants’ statement of defense will solve the claimant’s conundrum on whether estoppel was pleaded or not. In pleading estoppel, it is trite that using the word ‘estoppel’ is not compulsory before estoppel can be established; what is required to be pleaded are facts that establish estoppel. In this case, the defendants adequately pleaded facts in paragraphs 8 and 18 of their statement of Defense which show estoppel by conduct. Also, that the claimant by his participation in the examination and his subsequent collection of salaries in lieu of notice actually induced the defendants to believe that the claimant consented to the whole process and that he will not turn around to challenge it. Therefore, the case of Nsirim cited by the claimant is not helpful to his case but to the defendants’. In conclusion, the defendants urged the Court to discountenance the submissions as well as the authorities cited by the claimant in his final address for being unfounded and inapposite. In considering the merit of the case at hand, I must reiterate that the claims of the claimant are two: a declaration that his compulsory retirement is wrongful, illegal, unconstitutional, null, void and of no effect; and an order of reinstatement with full entitlements. The key issue for determination, therefore, is whether the claimant has proved his case as to be entitled to these two reliefs. Before going into the merit of the case, I must remark on an issue or two. At the close of the addresses of the parties, the Court was given the Civil Service Rules, Revised Edition, 2002, the Local Government Staff Rules of Ekiti State, Revised Edition, 2010 and the Report/Recommendations of the Committee on the Review of Local Government Staff Regulations, November 2008 as the Rules and Regulations that govern the claimant in this and the sister cases. For the purposes of this judgment I shall refer to and use only the Civil Service Rules, Revised Edition, 2002 and the Local Government Staff Rules of Ekiti State, Revised Edition, 2010. The Report/Recommendations of the Committee on the Review of Local Government Staff Regulations, November 2008 is exactly what it is, a report/recommendations. The argument of the claimant in paragraph 5.17 of his written address to the effect that there is nothing like the Local Government Staff Rules of Ekiti State, Revised Edition 2010, but that there is the Local Government Staff Rules of Ekiti State, November 2008 cannot, therefore, be tenable; and this remains so despite the fact that the claimant did not make an issue of it given that the provisions of the two are identical. The Local Government Staff Rules of Ekiti State, November 2008 cannot, therefore, be used to authenticate the rights and obligations of the staff in issue in this and the sister cases. I shall, therefore, discountenance it for purposes of this judgment. In the second place, the sworn depositions of DW2 and DW4 are basically the same. Paragraphs 2 – 21 of the deposition of DW2 are the same with paragraphs 2 – 21 of that of DW4: word for word, and punctuation mark for punctuation mark. To show how similar the two depositions are, in paragraph 11 of both depositions, for instance, GL15 is represented as “GL-15â€. And the last sentence in paragraph 5 of both depositions reads thus: ‘I shall rely on a copy of the letter written by me titled: “Ekiti State Local Government Reforms†and dated 13th May, 2011’. Now, this letter is Exhibit D1 and came from DW2 as Head of Service. Yet DW4, who is not the Head of Service, is swearing in a deposition and claiming authorship of the letter. This misnomer is, however, not repeated regarding paragraph 15 of both depositions; as in that of DW4, the deposition merely states that “I am aware that the Claimant scored 44.5% on the cumulative average of both the written examination and oral interview†and no more, leaving out the remainder of what is deposed to in paragraph 15 of DW2’s deposition. The only difference between the two depositions is that there is a swap in paragraphs 19 and 20 in both depositions. In this regard, paragraph 19 of the deposition of DW2 is paragraph 20 of that of DW4, while paragraph 20 of the deposition of DW2 is paragraph 19 of that of DW4. What all of this adds up to is that the credibility of the evidence of especially DW4 is suspect and so I shall discountenance it for purposes of this judgment. The facts of the case as I find from the evidence before the Court is that the claimant was employed as Administrative Officer, Grade VII on GL 08 step 2 by the Local Government Service Commission of then Ondo State in 1989 vide Exhibit C1 dated 6th September 1989. He was confirmed in 1992 vide Exhibit C2. Exhibit C3 dated 18th October 1994 approved the harmonization of the teaching service of the claimant with the Local Government Service with effect from 14th September 1984. By Exhibits C4 – C6 and C8 – C11, he was variously promoted from GL 08 (his entry Grade Level into the Service) through GL 09 to GL 16. Exhibit C7 evidences his appointment as an established staff i.e. as a permanent, and hence confirmed, staff with effect from 14th September 1989. On 7th June 2011, vide Exhibit C12, the claimant was asked to proceed on compulsory leave with effect from 7th June 2011 and then await further directives from the Local Government Commission. The reason given for this, going by the first paragraph of Exhibit C12, is “the decision of the State Government to investigate the activities of the Local Governments†and “the need…to ensure conducive atmosphere for uninterrupted and unfettered investigation in the Local Government Serviceâ€. While the claimant was on compulsory leave, he was on 18th August 2011 vide Exhibit C13 compulsorily retired from the Service with effect from 18th August 2011 with a promise to pay him his terminal benefits including three months’ salary in lieu of notice subject to clearance by the Commission. It is as a result of this set of facts that the claimant then sued praying for the declaration that his compulsory retirement from service is wrongful and unlawful, and for the consequential order of reinstatement. The case of the claimant is that he is a statutory employee with the defendants and so cannot just be compulsorily retired in the manner that he was without following the strict requirements of due process. The defence of the defendants (going by Exhibits D1 and D2, and the oral testimonies of DW1, DW2, and DW3) is that in the reorganization of the State Civil Service, which extended to the Local Government Service Commission, the claimant and others needed to leave the Service having failed an examination that was designed to test the continued competence and relevance of the claimant in the service of the Local Government Service Commission. To the defendants, therefore, they had the right to act as they did given the terms and conditions of the letter of employment of the claimant (Exhibit C1), clauses 02508, 05308, 05532(2) and 12204 of the Local Government Staff Rules, Revised Edition 2010. All the parties are agreed that the claimant’s employment is regulated by the State Civil Service Rules and the Local Government Staff Rules. By this, therefore, there is no doubt that the employment of the claimant is statutory; and I so hold. The weight of the judicial authorities especially cited by the claimant attests to this. See also Mr. Lawrence Azenabor v. Bayero University, Kano & anor [2011] 25 NLLR (Pt. 70) 45 at 61 – 62. The cases of FCSC v. Laoye [1989] 2 NWLR (Pt. 106) 657 SC and Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378 SC are authority for the proposition that the Civil Service Rules take their authority from the Constitution. The claimant was, at the point of his compulsory retirement, Director of Administration and General Services. While the Civil Service Rules, Revised Edition 2002 of Ekiti State does not have any provision on compulsory retirement (see section 8 of Chapter 2 dealing with leaving the service and composed of Rules 02801 – 02807 of the Civil Service Rules), Rule 12204 of the Local Government Staff Rules of Ekiti State, Revised Edition 2010 actually talks of compulsory retirement when it provides that – With the approval of the Permanent Secretary, an established employee…when ordered to retire…before the age of sixty, the giving of one month notice or three months notice (whichever) is applicable shall be required: Employee that is compulsorily retired shall be paid three months salary in lieu of notice. So when the claimant argued in paragraph 5.8 that the Civil Service Rules do not provide for compulsory retirement, he was correct; but he was not when he stated that the Local Government Service Law (the full citation of which the claimant did not supply) also did not make such a provision, if Rule 12204 of the Local Government Staff Rules of Ekiti State is anything to go by. When the claimant was asked to proceed on compulsory leave, the reason adduced in Exhibit C12 was “the decision of the State Government to investigate the activities of the Local Governments†and “the need…to ensure conducive atmosphere for uninterrupted and unfettered investigation in the Local Government Serviceâ€. This reasoning does not suggest that the claimant did anything wrong. So when the claimant was compulsorily retired, the reason given in Exhibit C12 was “the present reorganisation of Ekiti State Public Service, Local Government Service inclusiveâ€. The question that naturally arises is whether the compulsory retirement of the claimant actually met this requirement of reorganisation. The evidence of the defendants’ witnesses and Exhibits D1 and D2 all show that the reorganisation took the form of examination and interview to determine the continued competence and relevance of the claimant in the service of the Local Government. By paragraph 8 of the sworn deposition of DW1 and Exhibit D2, the claimant was confirmed as scoring 44.5% in the examination conducted for all Directors. By paragraphs 9 and 10 of the sworn deposition of DW1, the cut-off mark was 60% (see also paragraph v of Exhibit D1), which was reduced first to 50% and then 40%, after various interventions. Yet the claimant, who scored 44.5%, was not recalled. The testimony of DW1 in paragraph 11 of the sworn deposition to the effect that “in spite of the magnanimity of the State Governor, the claimant was still unable to meet the cut-off point†cannot, therefore, be believable or tenable. DW2 has a slightly different variant. He agreed as per paragraph 9 of his sworn deposition that the initial recommended cut-off mark was 60%, which was later reduced to 50%. Upon the intervention of the National Union of Local Government Employees (NULGE), this was further reduced to 40%; but two additional requirements were added i.e. outstanding length of service as at 1st of August 2011 should be five (5) years and above and satisfactory service records (paragraph 17 of his sworn deposition). DW2 also testified in paragraph 18 of his sworn deposition that six (6) officers excluding the claimant were re-absorbed having scored above 40% and satisfied the two other conditions. DW2 then insinuated that the claimant did not meet these requirements. Yet there is no evidence before this Court that the claimant had less than 5 years’ service left or that he did not have satisfactory service record to warrant him being recalled. There is no evidence before this Court of any wrongdoing on the part of the claimant. So, the evidence of DW2 in this regard is, therefore, not tenable. There is, therefore, no tenable reason why the claimant who scored 44.5% should not have been recalled. The claimant’s compulsory retirement is, therefore, wrongful, unlawful and so null and void; and I so hold. By the authority of University of Calabar v. Inyang [1993] 5 NWLR (Pt. 291) 100 CA, once the removal of a public servant is declared null and void, the effect is that such a public servant was always and still is a public servant. The claimant had actually sought to impugn the constitution of the Civil Service Transformation Committee as being unconstitutional and illegal. This in fact is the thrust of the submissions of the claimant regarding issue 2 that he framed. I do not agree with this viewpoint. Section 5(2) of the 1999 Constitution, as amended, vests executive powers of the State in the Governor; and executive powers includes the setting up of special purpose administrative committees such as the Civil Service Transformation Committee. I do not, therefore, see anything wrong in the setting up of the Civil Service Transformation Committee and the terms of reference given to it. The defendants had argued that in sitting for the examination and collecting the three months’ salary in lieu of notice (note that by Exhibit C13 the promise of payment of three months’ salary in lieu of notice was made contingent on clearance of the claimant by the Commission and there is no evidence of such clearance and hence payment), the claimant was estopped from complaining. Here, I agree with the claimant that the defendants got the issue of estoppel wrong in their conception. The sitting for and participation in the examination was not a choice, nor the making, of the claimant. It was the defendants’. The defendant cannot, therefore, turn round and claim that they were induced by the claimant to change their position. Neither can the defendants turn round and say that having collected three months’ salary in lieu of notice (even if this were the case), the claimant should not complain. Where the retirement is wrong, Adeniyi v. Governing Council, Yaba College of Technology (supra) is clear that the payment and receipt of three months’ salary in lieu cannot validate the wrongful retirement. The case of Alhassan v. ABU Zaria (supra) cited by the claimant is apposite also. The case enjoins a presumption in favour of the claimant that his employment can only be brought to an end for proven misconduct or other specified reason. The reason adduced by the defendants, which is reorganization of the Service, is not tenable since the yardstick laid down, namely, passing the examination set for all the Directors in issue, was met by the claimant. The case of Okocha v. CSC, Edo State [2004] 3 NWLR (Pt. 861) 582 is explicit when it states that the Civil Service Rules invest in public servants a legal status and they cannot be properly or legally removed until the said Rules are strictly complied with. For all the reasons given, I find for the claimant, and declare and hold as follows – (a) The compulsory retirement of the plaintiff’s appointment by the defendants is wrongful, illegal, unconstitutional, null, void and of no effect whatsoever. (b) The defendants shall forthwith re-instate the claimant to his employment with full entitlements from the date of termination of the appointment till judgment and thereafter till he reaches the age of retirement. (c) The three months’ salary paid to the claimant in lieu of notice shall be deducted from his monthly salary in an amount not exceeding one-third of his salary for any one month until fully recovered. (d) Cost is put at Fifty Thousand Naira (N50,000) only payable by the defendants to the claimant. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip