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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: December 1, 2014 SUIT NO. NICN/CA/92/2013 BETWEEN EMMA TOM UDONSEK - CLAIMANT AND 1. AKWA IBOM STATE GOVERNMENT 2. AKWA IBOM STATE CIVIL SERVICE COMMISSION DEFENDANTS 3. ATTORNEY GENERAL, AKWA IBOM STATE REPRESENTATION Tom Udonsek Esq for claimant. Essien E. Udom, with Chief H. Ataide, Sam Akpabio Esq for defendants. JUDGMENT The claimant filed this complaint against the defendants on the 13th May 2013 claiming jointly and severally from the defendants for: (i) An order nullifying the letter of retirement dated 14th February, 2013 issued to the claimant by the 2nd defendant, acting on the instruction of the 1st defendant. (ii) An order directing the defendants to reinstate the claimant into the Civil Service of Akwa Ibom State and to pay all salaries, allowances and emoluments of the claimant from March, 2013 till reinstatement. OR IN THE ALTERNATIVE (iii) a. An order for the payment of all salaries allowances and emoluments of the claimant from March, 2013 till January, 2029 when the claimant would have been due for retirement from the Civil Service. b. Ten Million Naira (N10,000,000.00) Damages for unlawful interference with the claimant’s contract of employment. Accompanying the complaint is the statement of facts, name of witness, witness statement on oath and copies of documents to be relied upon. The defendants entered a conditional appearance, filed their statement of defence, witness name, witness statement on oath and copies of documents to be relied upon. The parties joined issues and the matter went to trial. The claimant’s case on the pleadings is that she is a Legal Practitioner, and was at all material times a Deputy Director in the employment of the 1st defendant until her appointment was unjustifiably brought to an end on 14 February, 2013 by a letter titled “Reorganization of the Ministry of Justice and Retirement of Officers from the State Civil Service”. The claimant pleaded that she was born in Calabar, Cross River State on the 11th of January, 1969 attended several educational institutions and became a Legal Practitioner on the 10th day of December 1991. She pleaded that she was appointed into the Civil Service of the 1st defendant on 14th July 1995. That on the 31st August 2000, the 1st defendant issued her a staff identity card. The claimant pleaded that the 1st defendant confirmed her appointment into the civil service by letter dated 17th day of December, 1999 and that she has served the defendant loyally and in accordance with the offer of appointment to the Pensionable Establishment which she accepted for nearly eighteen years from 1995 to 2013 when the facts leading to the institution of this suit occurred. The claimant averred that in consideration of the loyal services rendered by her to the 1st defendant over the several years and in many capacities and stations since 1995, she has been gradually and consistently promoted by the 1st defendant from the rank of State Counsel II in 1995 to the rank of Deputy Director (Legal) with effect from 1st January, 2007. She stated that she has served as the Overseer of the Department of Public Prosecutions, Ministry of Justice from October 2010 to April 2011. The claimant pleaded that she has never been interdicted, suspended or made to face any panel of investigation in relation to any alleged misconduct or wrong doing by the defendants. That the 1st defendant placed her on Salary Grade Level 15 from 1st January, 2008 up to and including February, 2013. The claimant pleaded that the defendants without bringing her attention to a complaint regarding her services issued her a letter titled "Reorganization of the Ministry of Justice and Retirement of officers from the State Civil Service" dated 14th February, 2013, purporting to retire her from the service of the 1st defendant. That the defendants in consequence of the letter stopped paying her salary and other emoluments as a staff in the civil service of Akwa Ibom State since March, 2013. The claimant pleaded that she accepted the offer of appointment to the Pensionable Establishment of the 1st defendant in the knowledge and belief that the defendants in their dealing with her as a civil servant will abide by provisions of the Constitution of the Federal Republic of Nigeria, Pension Law, Public Service Rules of Akwa Ibom State and other Government Regulations and instructions as stated in the letter of Appointment. The claimant pleaded that she has not attained the relevant retirement age of sixty (60) years and has not been in the Public Service of the 1st defendant for up to thirty-five years. She stated that she would have been due for retirement on 12th January, 2029. That upon receipt of the letter of "Reorganization of the Ministry of Justice and Retirement of Officers from the State Civil Service", she appealed to the 1st defendant to cause the reversal or setting aside of the retirement in a letter dated 26th February, 2013. She pleaded that the defendants failed and neglected to give her the opportunity of knowing why she should be retired from service prematurely without any semblance of legal justification with "immediate effect" and without being given an opportunity to know the allegation made against her and to give a reply. She pleaded that she has been subjected to ridicule, embarrassment and psychological trauma by the action of the defendants. That several persons asked her why she was retired from service with immediate effect. The claimant testified as the only witness in support of her claims. Her evidence in chief was by witness statement on oath which she adopted and was in the exact terms of the pleadings. Under cross-examination, the claimant told the court she did not contact the Department of Establishment for the computation of her benefits because she is contesting the purported retirement was wrongful and she has approached the Court for justice. She admitted signing exhibit CW9 together with other officers. She told the court that she was never given a query. The claimant then closed her case. The defendants’ case on the pleadings is that the claimant has been in the service of the defendants for nearly eighteen years from 1995 to 2013 and has been promoted by the 1st defendant from the position of State Counsel II in 1995 to the position of Deputy Director (Legal) with effect from 1st January, 2007 and is on Salary Grade Level 15. The defendants pleaded that the claimant had full knowledge that her compulsory retirement from the service of the 1st defendant followed the decision reached by the State Executive Council to reorganize the Akwa Ibom State Ministry of Justice including the claimant’s office. That the decision to reorganize the Ministry of Justice of the State including the office of the claimant was taken at a duly constituted meeting of the State Executive Council presided over by the Executive Governor of the State. That it is within the powers of the Executive Governor of a State sitting in Council to restructure any Ministry, Department or Organ of the State for greater efficiency. The defendants pleaded that the Akwa Ibom State Executive Council had directed the Attorney General and Commissioner for Justice, to liaise with the Head of Civil Service and the Chairman Civil Service Commission to expedite action and conclude the reorganization of the Ministry of Justice and that the decision to reorganize the office of the claimant was not taken by the defendants but by the Executive Council of Akwa Ibom State. The defendants pleaded that the claimant was validly compulsorily retired from service of the 1st defendant in accordance with the relevant provisions of the Pensions Act and that the claimant was by their letter of 14th February, 2013, duly notified to contact the Department of Establishment for the computation of her benefits which legitimate entitlement would have been paid but for this action. That the claimant having been validly retired is no longer entitled to payment of salary and other emoluments but to benefits stipulated under the Pensions Act. The defendants pleaded that they have not breached the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), Pension Law, Public Service Rules, other Government regulations, in their dealings with the claimant as a Public Servant. They pleaded that the claimant’s retirement was to give effect to the decision of the State Executive Council to reorganize the Ministry of Justice and that no disciplinary measure was taken against the claimant within the contemplation of the Public Service Rules. That the claimant having appealed to the Executive Governor of Akwa Ibom State for the review of the decision of the Executive Council of the State acted in absolute bad faith by instituting this action in this Court. The defendants pleaded that the 1st defendant is not a juristic person and as such this action cannot be maintained against it; and that an order of certiorari does not lie against executive acts. The defendant called one witness (DW) Pastor Aniefiok Stephen, the Director of Administration, Ministry of Justice Akwa Ibom State. His evidence in chief was by witness statement on oath which he adopted and was in the exact terms of the pleadings. Under cross-examination, DW told the court that he is conversant with the Public Service Rules. He told the court that the claimant’s condition of service is governed by the Public Service Rules. DW informed the court that employment in the civil service has a statutory flavor. He said the claimant’s name was not written in exhibit D2. The defendants then closed their case. Counsel were both ordered to file their respective final addresses. The defendant’s final address is dated June 16, 2014 and filed on June 17, 2014. The claimant’s final address is dated June 26 2014 and filed on June 27, 2014. The defendant’s reply on point of law is dated July 11, 2014 and filed on July 16, 2014. The learned SAN submitted the following issues for determination: 1. Whether the Akwa Ibom State Executive Council has the power to reorganize its Ministries; 2. Whether the Akwa Ibom State Executive Council acted within its executive powers in ordering the retirement of the claimant as part of its reorganization of the State Ministry of Justice; 3. Whether this Honourable Court has jurisdiction to inquire into and/or quash a policy decision of the Akwa Ibom State Executive Council; 4. Whether the claimant is entitled to the reliefs sought in this suit He referred to Section 5(2) of the 1999 Constitution as amended and submitted that it vests the Executive powers of a State in Nigeria in the Governor of that State and in this regard, the existence of the Executive Council of a State therefore derives Constitutional force from the provision of Section 5(2) of the Constitution. He submitted that it is the prerogative of the Executive Governor of a State to organize and reorganize the administration of the Government of the State into various ministries and departments as may be required for the effective discharge of the policy decisions of the State and that this power may either be exercised directly or through the instrumentality of the State Executive Council. It was his contention that the extent of the executive powers of the Governor of a State to reorganize Ministries and Departments in the State is seen in Section 208(2)(c) of the 1999 Constitution. Learned counsel argued that Exhibit DW1which is the extract of the Minutes of the Meeting of the Executive Council shows that the retirement of the claimant was ordered by the Executive Council as part of the reorganization of the Ministry of Justice. It was his submission that the reorganization of Ministries and the compulsory retirement of any officer in the service of a State is within the contemplation of the Pension Act, Cap. P4 Laws of the Federation of Nigeria, which regulates the employment of the claimant. Section 3(1)(c) of the Pensions Act provides as follows: “3(1) No pension or gratuity shall be granted under this Act to any officer except on his retirement from the public service in any of the following circumstances that is- (c) On compulsory retirement for the purpose of facilitating improvements in the organization of the officer’s department or ministry so that greater efficiency or economy may be effected.” He submitted that the powers vested in the State Executive Council to reorganize the Ministries and retire public officers under the 1999 Constitution and the Pensions Act are essentially prerogative powers meant to facilitate the execution of state policies and enhance governance. Counsel further submitted that the State Executive Council does not derive its prerogative powers from the Public Service Rules and therefore the suggestion that the decision of the Akwa Ibom State Executive Council should conform to the provisions of the Akwa Ibom State Public Service Rules 2010 is clearly misconceived. He argued that the State Executive Council is not constituted as a judicial or quasi-judicial body and as such its decision to reorganize the Ministry of Justice and retire the claimant was entirely a policy decision taken in the public interest and was neither a disciplinary action nor a decision based on any allegation of misconduct on the part of the claimant. He submitted that the Akwa Ibom State Executive Council acted within the scope of its executive powers in ordering the retirement of the claimant as part of its reorganization of the State Ministry of Justice. Learned counsel argued that the main relief sought by the claimant which is: “An order nullifying the letter of retirement dated 14th February 2013 issued to the claimant by the 2nd defendant acting on the instructions of the 1st defendant” is in the nature of certiorari. He argued that the word “nullify” is synonymous with the word “quash” citing M.H.U.N. v. Min Labour & Prod. [2005] 17 NWLR (Pt. 953) 12 at 150; and that the Akwa Ibom State Executive Council in taking a decision to reorganize the Ministry of Justice to facilitate improvements in the Ministry for greater efficiency did not in the circumstance act in judicial or quasi-judicial capacity. He submitted that the court has no jurisdiction to inquire into and/or quash a policy decision of the Akwa Ibom State Executive Council to reorganize its Ministry citing Nwaoboshi v. MILAD Delta State [2003] 11 NWLR (Pt. 831) 305 at pages 318-320, paragraphs D-F. On whether the claimant is entitled to the reliefs sought, learned counsel submitted that the claimant’s first relief is the main relief on which the grant of other reliefs rests. That since it is not within the jurisdiction of this Court to grant the first relief the claimant is not entitled to the grant of the other reliefs citing Alhaji Sheu Abdul Gafar v The Government of Kwara State And Others [2007] 4 NWLR (Pt 1024) Page 375 at 398-399, Paras. He submitted further that the claimant has failed to adduce any evidence in support of the alternative reliefs sought in his claim and that, there is no provision anywhere in the Public Service Rules, Pension Act or any other law that could support the alternative relief claimed in the circumstance of this case citing Ajakaiye v Idehai [1948] 8 NWLR (Pt 364) 504 at 525, Ohaji v. Unamka [2011] 4 NWLR (Pt 1236) 148 at 164, Paragraphs C-F. He argued that Section 3(c) of the Pensions Act CAP, P4 Laws of the Federation of Nigeria, 2004 clearly provides for the payment of pension and gratuity on the compulsory retirement of a public servant for the purpose of facilitating improvements in the organization of the officer’s department or ministry so that greater efficiency or economy may be effected. He argued that the defendants acted lawfully in retiring the claimant as part of the reorganization of the State Ministry of Justice and are therefore not liable for any damages to the claimant. Learned counsel to the claimant submitted two issues for determination as follows: 1. Whether the retirement of the claimant “with immediate effect” from the Akwa Ibom State Civil Service by the 2nd defendant acting on the instructions of the 1st defendant is lawful. 2. Whether the claimant is entitled to the reliefs sought in this suit. He submitted that on the evidence adduced, the action of the defendants is in total breach of the provisions of the Public Service Rules of Akwa Ibom State, and is unlawful referring to Rule 020709. He submitted that the facts are all admitted by the defendants and therefore need no further proof citing Bendel Pilgrim Welfare Board V. Irawo [1995] 1 NWLR (incomplete citation.) He further submitted that the employment of the claimant by the 2nd defendant into the services of the 1st defendant is one clothed with a statutory f1avor and therefore cannot be dealt with otherwise than through the due process as established by the statute governing the operations of the State Public Service citing Idoniboye-Obu V. N.N.P.C. [2003] 105 LRCN 250 at 299 – 301, Longe V. FBN Plc [2010] 185 LRCN 33 at 42, Eze V. Spring Bank Plc [2012] 205 LRCN 157 at 187 He argued that the powers to appoint and terminate the claimant’s appointment is a constitutional power granted by the 1999 Constitution to the Civil Service Commission alone and not the State Executive Council referring to Section 2 (1) (a) (b) of Part 11 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Learned counsel submitted that the burden of proof that the claimant was to be retired is on the defendant citing P.H.M.B. V. Ejitagha [2000] WRN 1 Learned counsel submitted that section 5 (2) of the Constitution only gives the Governor of the state the power to delegate his functions to the Deputy Governor or Commissioners or indeed any other officer in the Public Service of that State. He argued that Section 5 (2) of the Constitution does not establish an Executive Council of the State and that it is therefore the duty of the court to do justice according to the clear and unambiguous wordings of this section of the law by applying the clear and unambiguous provision of this law without more referring to Adedayo & Ors V. PDP & Ors [2013] 221 LRCN (Pt. 1) 69 at 87 – 88. He submitted that 208 (1) and (2) of the Constitution gives the Governor power to appoint and to remove persons holding the following offices and cannot be construed to mean reorganization. Section 208 (2) (c) only gives the Governor of a State power to appoint and remove the officers so mentioned who are political appointees. He submitted that there is no provision in the Constitution establishing an Executive Council for a State or that the vests Executive Council which it does not establish, with the power(s) to reorganize the Ministries. Learned counsel submitted that the power to appoint and remove a civil servant of a state is constitutional and that Section 197 (1) (a) establishes a State Civil Service Commission. Section 2(1) (a) (b) vests the Civil Service Commission of a state with powers to appoint persons to offices in the State Civil Service and dismiss and exercise disciplinary control over persons holding such offices. That Section 204 (1) of the Constitution gives the Civil Service Commission power to make rules to regulate its procedure. Pursuant to this, the Akwa Ibom State Public Service Rules was made to regulate all issues relating to appointment and removal of officers in the Civil Service of the State. Counsel further submitted that the Civil Service Commission of a State, in the exercise of its powers, shall not be subjected to the direction and control of any authority or person referring to the provision of Section 202 of the Constitution. It was his submission that the defence of the defendants that the wrongful retirement of the claimant was ordered by the State Executive Council amounts to gross disobedience to and total violation, and a breach of the provisions of the Constitution. He submitted that the Pensions Law, Cap P4, Laws of the Federation of Nigeria applies to civilian employees of the Public Service of the Federation and not to employees of the Akwa Ibom State Civil Service from which the claimant was wrongfully retired. That the defendants are pushing for the interpretation of a law which does not apply to them citing Abdullahi V. The Military Administrator & Ors [2011] 192 LRCN 187 at 210. He further submitted that section 3(1) (C) does not vest on the "Governor-in-Council" nor the Executive Council the powers to reorganize the ministries nor to compulsorily and wrongfully retire the claimant or any officer in the service of the state. That section 3(1) (C) of the Pensions Act envisages a situation where the retirement of an officer had already been lawfully done and the officer is at the point of applying for pension. It does not apply to a serving officer. Learned counsel submitted further that the Executive Council of the State acted ultra vires their perceived powers. The Akwa Ibom State Civil Service Commission (2nd defendant) acted in breach of and ultra vires its constitutional powers. The 2nd defendant erred when it took unlawful and illegal orders from the Executive Council as this was done with blatant disregard to the statute setting it up i.e. the Constitution which grants the 2nd defendant powers to act independent of any authority of person. He submitted that certiorari does not apply to the instant case hence the submission of learned defendants' counsel that this suit is certiorari is a misdirection and an attempt by counsel to set up a different case as opposed to that of the claimant and pursue it by advancing arguments. That the defendants can only do this when they are setting up a counter¬claim citing Longe V. FBN PLC (Supra). He submitted that this case is that of, wrongful and unlawful termination of civil service appointment with statutory flavor and the Court is statutorily clothed with jurisdiction to hear and determine this suit pursuant to section 254 C (1) (a) - (m) of the 1999 Constitution (Third Alteration) Act, 2010. He finally urged the court to grant the reliefs sought by the claimant since it is clear from all the statutory and judicial authorities cited that the defendants acted unlawfully in retiring the claimant without due and strict compliance with the provisions of the Public Service Rules of Akwa Ibom State. Replying on points of law, learned counsel submitted that Section 204 of the 1999 Constitution relates to the power of the Commission and other State Executive Bodies to make rules to regulate their procedure for the purpose of discharging their functions under the Constitution. It was his further submission that Section 6 of chapter 4 of the Public Service Rules must be read within the context of Section 2(1) of Part II of the Third Schedule of the Constitution otherwise it will be inconsistent and therefore void. He finally submitted that the constitutional and statutory powers to re-organize the Ministries and retire officers resides in the Governor and not the State Civil Service Commission. I have carefully considered the processes filed, the evidence led, written submissions and authorities. The issues for determination in this judgement are: (i) whether or not this Court has jurisdiction to inquire into and/or quash the policy decision of the Akwa Ibom State Executive Council; (ii) whether the claimant’s appointment with the defendants is one with statutory flavour; (iii) whether the defendants complied with the law in retiring the claimant from service; (iv) whether on the pleadings and evidence the claimant ought to be entitled to the reliefs sought. A court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In order to determine whether a court has jurisdiction to entertain a matter, the relevant provisions of the Statute setting up the court must be examined to see the nature and scope of its jurisdiction and powers and whether or not the matter falls within its powers. Furthermore, the court is required to look at the complaint and statement of facts as it is the claimant’s case that determines the jurisdiction of the court. The jurisdiction of this Court is governed both by Section 7 of the National Industrial Court Act 2006 and Section 254C(1)(a) to (m), (2), (3), (4) & (5) of the 1999 Constitution as amended which confers an expanded jurisdiction. The claimant’s case is for unlawful interference with her contract of employment and premature retirement from the service of the 1st and 3rd defendants’. This falls squarely within the purview of the jurisdiction of this Court. The nature of the powers of this Court are contained in Sections 16, 17, 18 and 19 of the National Industrial Court Act 2006. Specifically Section 17 (1) and (2) provides that: 17---(1) The Court shall have the power to make an order of mandamus requiring any act to be done or an order of prohibition prohibiting any proceedings, cause or matter, or an order of certiorari removing any proceedings, cause or matter into the Court for any purpose. (2) The power conferred on the Court by this section to make an order of mandamus, prohibition or certiorari may be exercised notwithstanding that the order is made against an officer or authority of the Federal, State or Local Government as such. There is no dispute that the Executive Powers of a State are vested in the Governor as provided in Section 5 (2) (a) and (b) of the 1999 Constitution reproduced as follows: Subject to the provisions of this Constitution, the executive powers of a State: (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the state; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws. It is pertinent at this juncture to also refer to section 6 (6) (b) of the 1999 Constitution: 6. The Judicial powers vested in accordance with the foregoing provisions of this section (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; It is clear from Section 5 (2) (a) & (b) that the Governor’s executive powers are not absolute. While the Governor is empowered to make policy decisions together with the Executive Council, and in this instance to re-organise the Ministry of Justice, the policy decision and its execution must be within the confines of the law for it to be operative. See Comptroller Abdullahi Gusau v Comptroller General of Customs [2014] LPELR-23367 (CA/A/248/2013 11th July 2014), P.H.M.B. v Ejitagha [2000] 11 NWLR (Pt 677) 154. On the other hand, Section 6 (6) (b) of the Constitution is not made subject to any provision of the Constitution like section 5(2) is. The critical question to therefore resolve applying section 6(6)(b) is whether the rights of the claimant have been affected by the policy adopted by the Governor in exercise of his power under section 5 of the Constitution. On the pleadings, I find that the rights of the claimant are in issue as having been affected. I therefore hold that this Court has jurisdiction to entertain this action and to inquire into and/or quash a policy decision of both the Akwa Ibom State Executive Council and the defendants where such a policy decision and/or executive action is taken outside the provisions of the law and adversely affects the employment rights of the claimant. See Akibu v Oduntan [1992] 2 NWLR (Pt 222) 210 at 228, Shitta-Bey v Federal Civil Service Commission [1981] 1 SC 40. The claimant has testified that she was appointed into the pensionable establishment of the civil service on 14th July 1995 was promoted to the position of Deputy Director (Legal) with effect from 1st January 2007 and placed on Salary Grade Level 15 from 1st January 2008. These facts are admitted by the defendants. She has placed before the court all the required component pieces of evidence relating to her appointment, status, service details and the applicable operative staff conditions of service the Akwa Ibom Public Service Rules 2010 which regulates her appointment. The Public Service Rules have been made pursuant to the powers conferred by the provisions of Sections 197 (1) (a), 204 (1) and the Third Schedule, Part II Paragraph 2 (1) (a) & (b) of the 1999 Constitution as amended. They are Regulations deriving from the provisions of the 1999 Constitution as amended. I find that the claimant’s contract of service is governed wholly by the Regulations deriving from constitutional and statutory provisions. I hold that her employment is one with statutory flavour and she does not hold office at the pleasure of the defendants. See Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Olaniyan v University of Lagos [1985] 2 NWLR (Pt 9) 599, Iderima v Rivers State Civil Service Commission [2005] 16 NWLR (Pt 951) 378. The claimant has complained that she was prematurely retired by the defendants in breach of the Public Service Rules and without being given a fair hearing. Her letter of retirement is reproduced as follows: GOVERNMENT OF AKWA IBOM STATE OF NIGERIA Our Ref:AKC/S/0072/S.3/Vol II/424 Civil Service Commission 14th February, 2013 Ema Tom Udonsek Assistant Director u.f.s. The Attorney-General/Commissioner Ministry of Justice, Uyo. Sir/Madam, REORGANIZATION OF THE MINISTRY OF JUSTICE AND RETIREMENT OF OFFICERS FROM THE STATE CIVIL SERVICE The State Executive Council has approved reorganization of the State Ministry of Justice. Arising from this, you are retired from the service with immediate effect. Government appreciates your past services and wishes you success in all your future endeavours. Please, contact the Department of Establishments for the computation of your retirement benefits. Copies of this letter are being endorsed to the Head of Civil Service, the Permanent Secretary, Governor’s Office, the Permanent Secretary, Department of Establishments, Attorney-General/Commissioner for Justice, Accountant General, State Auditor-General for information and necessary action. Chief J.J.Obot Chairman. Now, DW testified that the claimant’s compulsory retirement was not as a result of any disciplinary measure as contemplated in the Public Service Rules but was to give effect to the decision of the State Executive Council; and that it was validly carried out in accordance with the relevant provisions of the Pension Act. Learned counsel to the defendants has also made this submission in paragraph 4.2.7 of the address as follows: “the compulsory retirement of any officer in the service of a State is within the contemplation of the Pensions Act, Cap P4, Laws of the Federation of Nigeria, which regulates the employment of the claimant”. The Pension Reform Act 2004 as amended in 2014 is the existing law and it does not regulate the employment of the claimant. It establishes the contributory pension scheme for employees in the Public Service and the Private Sector. Furthermore, section 3 (1) (c) reproduced by defence counsel in the address does not exist in the Pension Reform Act 2004. The State Civil Service Commission is established by Section 197 of the 1999 Constitution as amended and by the provisions of Part II Paragraph 2 (1) (a) & (b) of the Third Schedule (reproduced below): 2. (1) The Commission shall have power without prejudice to the powers vested in the Governor and the State Judicial Service Commission to – (a) appoint persons to offices in the State Civil Service: and (b) dismiss and exercise disciplinary control over persons holding such offices. The law is settled that in a contract of employment, the conditions of service rules and regulations are binding on both the employee and employer equally. See D.A.Nig Alep Ltd v Oluwadare [2007] 7 NWLR (Pt 1033) 336. The 2nd defendant is the appointing authority with powers also to determine the appointments of officers on behalf of the 1st defendant. Together with the 1st and 2nd defendant, the 3rd defendant has a duty to comply with the Public Service Rules regarding all aspects of an Officers service. The extracts from conclusions of the Akwa Ibom State Executive Council Exhibit DW1 are reproduced as follows: AGENDA ITEM NO. 5: REORGANIZATION OF MINISTRY OF JUSTICE. DEPLOYMENT OF LEGAL OFFICERS TO LEGAL DESKS IN MINISTRIES AND PARASTATALS AS DEPARTMENTAL LEGAL ADVISERS FROM THE MINISTRY OF JUSTICE AND REQUEST FOR APPROVAL TO RECRUIT 30 (THIRTY) LEGAL OFFICERS OF VARYING GRADES INTO THE AKWA IBOM STATE CIVIL SERVICE FOR DEPLOYMENT TO THE MINISTRY OF JUSTICE. 35. Reacting to the issues raised, His Excellency, the Governor directed the Attorney-General and Commissioner for Justice to liaise with the Head of Civil Service and the Chairman, Civil Service Commission to expedite action and conclude the immediate re-organization of the Ministry of Justice. 36. His Excellency the Governor also directed the Attorney-General and Commissioner for Justice to liaise with the Head of Civil Service to ensure the deployment of a lawyer to the State Council of Chiefs to assume duties as the Secretary on Monday 1st August 2011. 37. On the information brought to the attention of Council that in the time past private lawyers were appointed as Government External Counsels without the Governor’s approval, His Excellency, the Governor directed the Attorney-General and Commissioner for justice to always obtain approval before appointing such External Counsels. CONCLUSION 38. His Excellency, the Governor-in-Council approved iv. immediate re-organization of the Ministry of Justice v. the deployment of Legal Officers to Ministries and Parastatals from the Ministry of Justice to give legal opinion, vet legal documents and collate documents; vi. the deployment of Legal Officers to Ministries/Parastatals from the Ministry of Justice to prepare briefs and do such things as would aid in the speedy defence of litigation of departments; vii. the appointment of (30) Lawyers of varying degrees of experience into Akwa Ibom State Civil Service for deployment as Legal Officers in the Ministry of Justice. The Executive Council decisions and directives as contained in the extracts of minutes of the State Executive Council are specific and unambiguous. The document speaks for itself. See Ogundele v Agiri [2009] 18 NWLR (Pt 1173) 219. In the exercise of its interpretation jurisdiction, courts are enjoined to construe a document in its ordinary and grammatical meaning without any colouration. Where specific things or persons are mentioned, those not mentioned are not intended to be included. See Obi v INEC [2007] 11 NWLR (Pt 1046) 449. The re-organisation was directed as a general need; and the nature of re-organisation was then amplified in the ensuing paragraphs i.e. to bring in more legal officers, to post legal officers to Ministries and Departments/Parastatals, and to stop the practice of firming out legal briefs to external solicitors without the Governor’s approval first had and received. This is the true import of the re-organisation the Executive Council approved. The re-organisation was not to retire lawyers but to bring in more lawyers so that all Ministries and Departments/Parastatals can be served with legal officers each. Within this framework then, it was a wrong interpretation for the defendants to read the extract as authorizing the retirement of lawyers in the State Ministry of Justice. You cannot say you are re-organising by retiring lawyers in one breath and then in the second breath say that more lawyers be employed to service the same system within which you are retiring others who have not reached retirement age or committed any wrongdoing. In this wise, it was accordingly wrong to retire the claimant using the extract as the justifying instrument. This to my mind represents the true essence of this case. I find from the extract of the minutes that the Executive Council did not decide or approve the compulsory retirement of the claimant or any other lawyer in the Ministry of Justice. I hold that the Akwa Ibom State Executive Council presided over by the Executive Governor did not decide or approve the compulsory retirement of the claimant. The Executive Council’s directive to the Attorney-General was to liaise with the Head of the Civil Service and the Chairman of the Civil Service Commission. The Civil Service Commission, the 2nd defendant is the body empowered to appoint, discipline and dismiss officers in the Civil Service. The letter of compulsory retirement was written by it and signed by its Chairman. It was therefore its decision to compulsorily retire the claimant and it is expected to do this within the confines of the Public Service Rules. The reason given for the claimant’s retirement from service with immediate effect is the re-organisation of the Ministry of Justice. I find that re-organisation of a Ministry is not a ground for compulsory retirement in the Akwa Ibom State Public Service Rules 2010 and I so hold. Compulsory retirement is provided for in Rule 020709 as follows: (i) The compulsory retirement for all grades in the Service shall be 60 years of age or 35 years of service whichever is earlier. (ii) Notwithstanding sub-section (i) above, (a) a Director shall compulsorily retire upon serving ten (10) years in the post: and (b) a Permanent Secretary shall hold office for a maximum term of eight (8) years and no more. I find that the claimant does not belong to any of the categories mentioned in Rule 020709. In other wards, she has not attained the age of 60 years or spent 35 years in service, neither is she a Director or a Permanent Secretary. The claimant has testified that she has never faced any disciplinary measures and was not informed of any allegation against her to warrant her retirement. DW has admitted that she was not retired based on any disciplinary measures. Applying the legal test of the reasonable man, the compulsory retirement with immediate effect of the claimant who is a career civil servant, suggests a disciplinary measure which imputes misconduct or wrongdoing by her; she is therefore entitled to a fair hearing and I so hold. I hold that the claimant was not qualified for compulsory retirement on 14th February 2014 when the letter was written having not attained the retirement age of 60 years or 35 years in service; and that she was compulsorily retired by the defendants for no reason and in blatant disregard of the Public Service Rules. The claimant is a career civil servant of the established and pensionable cadre and is guaranteed security of tenure by the Public Service Rules. However, this does not translate to a fixed term contract of employment. This is because either party relying on, and applying the Public Service Rules may bring the employment contract to an end before the attainment of 60 years or 35 years in service. I find that the defendants have acted judicially in the sense that they determined the civil rights of the claimant to remain in employment in the civil service without her being given a fair hearing as enjoined by Section 36 (1) of the 1999 Constitution and without complying with the provisions of Rule 020709 and Chapter 4 Rules 040431 to 04035. The 2nd defendant must carry out its activities in line with its governing laws, rules, and procedures. The rules regulating retirement and discipline must be strictly complied with, the claimant’s employment being one with statutory flavour. Therefore, in the execution of the policy decision to re-organise the Ministry of Justice, the exercise of the defendants’ powers and conduct are subject to the control of this court by means of certiorari. See J.S.C. Cross River State v Dr Asari Young [2013] 11 NWLR (Pt 1364) 1. I hold that the claimant’s compulsory retirement by the defendants’ is unlawful, null and void and of no effect. The letter of compulsory retirement dated 14th February 2013 is hereby nullified. The claimant is entitled to automatic reinstatement. She is reinstated into the Civil Service immediately as Deputy Director (Legal) with all the rights and privileges she is entitled to as a Grade Level 15 Officer and with no loss of seniority. The claimant is entitled to all her salaries and allowances from March 2013. See Shitta-Bey v Federal Public Service Commission supra, Iderima v Rivers State Civil Service Commission supra, Olatunbosun v NISER Council [1983] 3 NWLR (Pt 80) 25. For all the reasons given above, I hereby make the following orders: 1. The 2nd defendant’s letter of compulsory retirement dated 14th February 2013 written to the claimant is hereby nullified. 2. The claimant is reinstated into the Civil Service immediately as Deputy Director (Legal) with all the attendant rights and privileges of her Grade Level and with no loss of seniority. 3. The defendants’ are ordered to immediately release and pay the claimant her salaries, emoluments/allowances and other entitlements due to her from March 2013. 4. Costs of N50,000.00 to be paid to the claimant by the defendants. Judgement is entered accordingly. ______________________________ Hon. Justice O.A.Obaseki-Osaghae