COMPTROLLER GENERAL OF CUSTOM & ORS v. GUSAU (2017)

In The Supreme Court of Nigeria

On Friday, the 7th day of April, 2017

SC.491/2014

Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

1. COMPTROLLER GENERAL OF CUSTOMS
2. NIGERIA CUSTOMS SERVICE
3. HON. MINISTER OF FINANCE
4. NIGERIA CUSTOMS SERVICE BOARD –Appellants

AND

COMPTROLLER ABDULLAHI B. GUSAU –Respondent

…………………….A…………………….

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Respondent and one Comptroller A.A. Ahmed, respectively the 2nd and 1st Plaintiffs, were customs officers until 21st December, 2009 and held Offices each as Comptrollers of Customs in the Nigeria Customs Service. On 21st December, 2009 they came to office and were denied entry into their various offices by the representatives of the 1st and 2nd (Appellants) on the basis that they have been purportedly retired from the services of the 2nd (Appellant) in which they work under the instructions of the 3rd (Appellant). They were not, until then, aware that they had been retired from the service of the 2nd Appellant.The Nigerian Customs Service Board Act Cap 100, LFN 2004 has in Section 1(1) thereof, enacted by the National Assembly pursuant to its powers to legislate on any item contained in the Exclusive Legislative Lists (particularlyItem 16 thereof), established the Nigerian Customs Board Section 1(1) of the said Nigerian Customs Service Board Act, 2004 Provides –
1(1) There is hereby established under the control of the Federal Ministry of Finance a board to be known as the Nigerian Customs Service Board (in this Act referred to as “the Board”) which shall be responsible for the administration of the Customs and Excise Management Act.”
The Act in Section 3 thereof vests on the Board the responsibility for formulating the general policy guidelines for the Nigerian Customs Service. These general policy guidelines are clearly different and distinct from the “regulations relating generally to the conditions of service in the Nigeria Customs Service” that the Nigeria Customs Service Board is empowered to make, subject to the approval of the Minister of Finance, under Section 9 of the Nigerian Customs Service Act, 2004.
It is clear therefore, that the Nigerian Customs Service Board has been established as a parastatal “under the control of the Federal Ministry of Finance – which shall be responsible for the administration of the Customs and Excise Management Act.”
The powers of the Board, as provided by Section 4 of the Act are spelt out thus –
“4.(1) The powers, being exercised by the Customs, Immigration and Prisons Service Board to appoint, promote and exercise disciplinary control over staff of the service are hereby vested in the Board.”
(2) The Board shall have Power –
(a) to appoint persons to hold or act in all the offices in the Service, including the power to make appointments on promotion or transfer and to confirm appointments; and
(b) to dismiss and exercise other disciplinary control over persons appointed pursuant to Paragraph (a) of this Subsection.

And to give effect to the powers to appoint and discipline officers in the Customs Service Act in Section 9thereof, empowers the Board to, “with the approval of the Minister, make regulations relating generally to the conditions of service including –
(b) the appointment, promotion and disciplinary control, including dismissal of the staff of the Board and of the service.
Regulations, in administrative Law, are subordinate legislations made by government departments under the authority of their enabling statutes or Acts of parliament. See EARL JOWITT: The Dictionary of English Law Regulations, in the context of Section 9 of the Customs Service Act, are by-laws, a body of rules having legal force which the 4th Appellant is empowered by The Nigeria Customs Service Act to make in relation to the functions it is authorised to perform by Law. See Black’s Law Dictionary 9th Edition.
There are yet no general regulations or by-laws made pursuant to Section 9 of the Nigeria Customs Service Act relating to the manner of leaving service. Section 4 Paragraph 160401 of the Public Service Rules makes it clear that the provisions in Section 8 in Chapter 2 of the Public Service Rules on leaving the service shall apply to all parastatals as contained in each parastatal’s conditions of service. There is no general regulation made pursuant to Section 9 of the Nigeria Customs Service Act relating to the manner of leaving service.
In view of the foregoing therefore, it is indubitable that the Respondent, like any other staff in the Nigerian Customs Service, holding a pensionable employment holds the employment with a statutory flavor. The relationship between the Respondent and the Board is not, nor was it intended to be, that of ordinary master-servant in which the servant holds the employment at the pleasure of the master. The Respondent had averred that he was required to retire mandatorily either upon attaining 60 years of age, or after 35 years in service, whichever was earlier. He relies on the provisions of the Public Service Rules.
Appellants, on their part, averred that they acted in accordance with the Public Service Rules and Exhibit 24 to terminate Respondent’s employment. If they did, as they had averred, they would have been more civil than the whimsical way they did lock the Respondent out of his office in order to shove him out of the office and also show him the way out of service. The

…………………….B…………………….

Public Service Rules has, in it, established an authoritative standard or principle of determining appointments or employments regulated thereby, which negate the use of this brutal force or strong arms. This conduct of the Appellants, which they gleefully relish, is antithetic to the rule of law.
I repeat; without notice, the Respondent was on 21st December, 2009 discourteously and capriciously locked or shut out of his office.
The Respondent and the 1st Plaintiff did everything, to no avail, to have the matter resolved out of Court and their retirements rescinded. Thereafter they approached the Federal High Court claiming four (4) reliefs, to wit
“1. A declaration that the purported retirement of the plaintiffs from the services of the 2nd Defendant (Appellant) is unlawful, malicious, irregular and a flagrant violation of the plaintiff’s right of employment until the mandatory retirement age.
2. An Order- setting aside the purported retirement of the plaintiffs by the 1st and 2nd Defendants (Appellants) through a public notice as unlawful, malicious, irregular and a flagrant violation of the plaintiffs’ right of employment until the mandatory retirement age.
3. An Order – to the Defendants (Appellants) allowing the plaintiffs to resume back to work and maintain their positions as Comptrollers of Customs and to be paid all their benefits and emoluments therein and also to enjoy their lawful promotions.
4. An Order awarding the sum of N20,000.000.00 (Twenty Million Naira only) to the plaintiffs as general damages for the trauma of forceful loss of job occasioned by the 1st and 2nd Defendants (Appellants).”

The complaint of the Respondent, one of the two plaintiffs at the trial Court, was premised on the premature and unlawful retirement. He averred in the Amended Statement of Claim that –
the purported retirement (was) at variance with the Constitution of the Federal Republic of Nigeria and all known extant laws on public service, since as officers of the 2nd Defendant (Appellant), they are deemed to be public servants whose retirement is guided by the public service rules and not otherwise and that the public service reforms only affect permanent secretaries and Directors, and not Assistant Directors in which they are in employment of the 2nd Defendant (Appellant).”
The Respondent, as the 2nd plaintiff at the trial Court, had predicated his claim on Section 8 of the Public Service Rules which provides that –
“The compulsory retirement age of all grades in the Civil Service shall be 60 years or 35 years of pensionable service, whichever is earlier.”
The Respondent, in the amended statement of claim, had therefore computed that he would be due for compulsory retirement.
“a. On 19th December, 2016 when his biological age would be 60 years; or
b. On 9th September, 2018 by which time he would have clocked 35 years in service.”

whichever would be earlier. In his case, therefore, since the Respondent would attain 60 years of age on 19th December, 2016, that would be earlier than the 9th September, 2018 when he would have been in the Public Service of the Federation for 35 years. This computation is based on Exhibit B3, his service Information Print out. Exhibit B3 is coming from the Respondent’s record of service kept by the Appellants, particularly the 2nd and 4th Appellants, who do not dispute its authenticity. The question not answered by the Appellants readily is: can the Appellants alter the Respondent’s accrued rights from contract of service midstream and unilaterally too? The Public Service Rules, which the Appellants claim to act under does not support this unilateral and arbitrary action of theirs. The effect of a party terminating a contract of service governed by regulations, rules or statutory instrument is that such arbitrary or unilateral termination is invalid and ineffectual. See FATUADE v. OBAFEMI AWOLOWO UNIVERSITY TEACHING HOSPITAL (1993) 3 NWLR (Pt.291) 47 at 63.
The Respondent had contended in the Amended Statement of Claim and his deposition on oath (as 2nd plaintiff) that Exhibits C, D, E & F clearly establish and put him out as a worthy and dedicated officer entitled to be “decorated with national honours” rather than the shoddy manner he was shoved off the office by the premature retirement.

…………………….C…………………….

The trial Court, at page 561 of the Record, made the following finding of fact, which none of the parties has contested or challenged in the appeal
Both Exhibits 11 and 19 showed the 2nd Plaintiff’s (Respondent herein) date of birth to be 1956, so the issue of his date of birth is not in contention. I therefore agree with the 2nd plaintiff (Respondent herein) that his date of retirement by age is 19th December, 2016 and by years of service to be 9th September, 2018. It is clear, therefore, that his retirement in 2010 was premature.” [underlining for emphasis] The effect of the failure of the parties to appeal against these specific findings of fact/by the trial Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULLAHI (1998) 6 NWLR (Pt.552) 1 at 4; NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140; OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56: (2006) 15 NWLR (pt.2002) 342. These findings, as the Court below, on the authority of STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY {2006} 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135, held, are deemed to be correct, binding and conclusive.
The findings of fact at page 561 of the Record of Appeal by the trial Court, which the Court below at pages 778-779 of the same Record affirmed, are no doubt in furtherance of Section 8 of the Public Service Rules pertaining to the public service of the Federation. The said Section 8 of the Public Service Rules provides that “the compulsory retirement age of all grades in the civil service shall be 60 years or 35 years of pensionable service, whichever is earlier.” The Court below was not in any doubt, by virtue of Sections 1 Paragraph 160103 and 4 Paragraph 1604016(a) of the Public Service Rules, that the trial Court was, in the findings of fact at 561 of the Record, interpreting and/or applying Section 8, Paragraph 020810 (1) of the Public Service Rules, on compulsory retirement age, as it relates to the Respondent who was the 2nd plaintiff at the trial.
In spite of its findings at page 561 of the Record, the trial Court went ahead to dismiss the Respondent’s (2nd plaintiff’s) suit and affirmed his premature retirement that he complained of. In so doing the trial Court placed reliance on Exhibit 24, Policy Guidelines on Nigeria Customs Service Reforms which guidelines the Nigeria Customs Service Board, the 4th Defendant (and the 4th Appellant herein), was allegedly empowered to make, by dint of Section 3(a) by the Nigeria Customs Service Board Act, 2004. At Page 779 of the Record the Court below, in its judgment, had stated that the 4th Appellant herein “has the power to inter alia formulate general policy guidelines for the Nigeria Customs Service by virtue of Section 3(a) of the Nigeria Customs Service Act.” The parties herein are not in dispute about this.
The Appellant’s Amended Statement of Defence (at pages 355 – 359 of the Records) in paragraphs 5 and 6 thereof had averred –
“5. The Nigeria Customs Service Board in 2009 brought up a Policy Guidelines to reform the Nigeria Customs Service with the view of repositioning the Service for better revenue generating into the Federation Account.
6. The Defendants aver that as a general guideline, human resources streamlining was for the following reasons,
a. Officers not making any effective and positive contributions
b. Officers with declining productivity
c. Officers with disciplinary cases
d. Officers who have served on the same grade for extended period of time.”

It does appear that the trial Court regarded these averments as sufficient to justify the admissibility of  Exhibit 24 – Policy Guidelines on Nigeria Customs Service Reforms. The Policy Guidelines are not a subsidiary legislation and do not ipso facto become one. The Appellant did not establish that Exhibit 24 was a body of “regulations relating generally to the conditions of service in the Nigeria Customs Service” made by the Board “with the approval of the Minister” in accordance with Section 9 of the Act.
R.C. Agbo, JCA, in UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84, had stated, and I agree, that policy documents, commonly referred to as guidelines, are not subsidiary legislations. Section 9 of the Act intends that the regulations relating generally to the conditions of service with regards to appointments, retirement or disciplinary control of staff of the Board and of the Service shall be a subsidiary legislation or by law made by the Board with the approval of the Minister. Exhibit 24 does not fall into the category or class of subsidiary legislations. There is no evidence that the Minister approved Exhibit 24 as a body of “regulations

…………………….D…………………….

relating generally to the conditions of service in the Nigerian Customs Service.” Even if that was the situation, there is still another question: whether it will retrospectively alter existing and established conditions of service? My answer is NO.
The narrow question in this appeal is: between the Public Service Rules and the Policy Guidelines on Nigeria Customs Service Reforms, which of the two instruments guide the compulsory retirement age of the 2nd plaintiff/Respondent from the Public Service? Closely related to this question is: In the event of conflict between the two, which of these instruments takes precedence over the other?
For the determination of this appeal, the Appellants formulated and argued the sole question:
Whether the learned Justices of the Court of Appeal were right in setting aside the judgment of the trial Court and re-instate the Respondent in the service of the Nigeria Customs Service
The Respondent has adopted the sole issue for determination of this appeal.
At the risk of repetition: the defence of the Appellants, as the Defendants at the trial, is that the 2nd plaintiff/Respondent, having “stayed and/or served as Comptroller of Customs for 10 (ten) years”, was due for compulsory retirement in accordance with the Policy Guidelines for the Reform of the Nigeria Customs Service. Appellant’s counsel submits that the retirement of the 2nd Plaintiff/Respondent “was effected pursuant to the policy guidelines issued by the Nigeria Customs Service Board, the 4th Appellant. The learned counsel submits further that, on admission of the 2nd Plaintiff/Respondent that he was promoted to the rank of Comptroller on 1st January, 2000, it follows that, as he had served 10 years on that rank, he was therefore not prematurely retired. The learned counsel then urged that this appeal be allowed because the learned trial Court (sic) was in error, when she held that the Respondent, pursuant to Paragraph 5 of the Exhibit 8, was promoted to the rank of Comptroller of Customs on June 15th, 2000, instead of 1st January, 2000. This submission is misguided. This Court, by virtue of Section 233 of the 1999 Constitution, as amended, does not have jurisdiction to entertain, and it does not entertain appeals from the trial High Court. Secondly, the argument is not relevant for the purpose of the sole issue formulated by the Appellants for the determination of this appeal.
The germane arguments, relevant to the sole issue for determination of the appeal, are in paragraphs 3.19, 3.20 and 3.21 of the Appellants’ Brief. The Court below at page 779 of the Record had held –
“- A statement, general or otherwise, cannot overrule or wipe away specific provision of the Public Service Rules especially where such policies are not written into the terms of the contract of the employee, as the instant. I agree with the appellant’s (respondent herein) counsel that a decision of the Court solely on policy, as the instance, leads to uncertainty in law.”
Appellant’s counsel submits that the Court below on the above statement erred; that by virtue of Section 8 Rule 020206(ii) of the Public Service Rules, 2008, and that pursuant to the said Section 8 Rule 020806 (ii) the Appellants could, regardless of the 35 years of service or 60 years of age policy for compulsory retirement, effect retirement from service. Learned Counsel further submits that the Court below had affirmed the powers of the Appellants, pursuant to Section 3(a) of the Nigeria Customs Service Board Act, to issue Policy Guidelines for the Reform of Nigeria Customs Service, and that the 2nd Plaintiff/Respondent’s retirement pursuant to the said Policy Guidelines was therefore proper. He concludes with the submission that the retirement of the 2nd Plaintiff/Respondent was proper and in line with the Policy Guidelines, and the Public Service Rules, 2008. Now, by virtue of Section 9 of the Act regulations relating to appointment, retirement or discipline of officers in the Nigeria Customs Service can only be made by the Board on approval of the Minister. The General Policy Guidelines for Reform of the Nigeria Customs Service, Exhibit 24, is, in my
view, irrelevant for the issue in this appeal, there being no evidence that the said General Policy Guidelines for Reform of the Nigeria Customs Service, Exhibit 24, is a regulation or body of regulations made by the Board with the approval of the Minister of Finance, in accordance with Section 9 of the Act.
The Appellants’ counsel is quite ambivalent in his approach to this appeal. In one breath he does not recognise the applicability of the Public Service Rules, which is the basis of the Respondent’s case, to the unceremonious retirement of the Respondent. In another breath he seeks cover of Section 8 Rule 020806 (ii) of the said Public Service Rules to

…………………….E…………………….

justify the premature retirement of the Respondent. In litigation, consistency is the rule. A party is not allowed to approbate and reprobate on one issue.
Right from the trail, it was not the case of the Appellants that the Respondent was prematurely retired for any of the grounds in Section 8 Rule 020806 (ii) of the Public Service Rules, 2008, which provides –
“An officer whose service is no longer required in the event of abolition of office, re-organisation of the office or redundancy shall be required to leave the service.
It was not the case or defence of the Appellants that, pursuant to Section 8 Rule 020806(ii) of the Public Service Rules, they were constrained to retire or terminate the employment of the Respondent prematurely because of the happening of any or all these facts. That is, that the service of the Respondent was no longer required because –
“i. his office has been abolished; or
ii. his office has been re-organised; or
iii. he has become redundant”.

If that was their defence, they should have pleaded it. The essence of pleadings is to settle issues to be tried and to prevent one party taking the other by surprise. See GEORGE v. DOMINION FLOUR MTLLS LTD. (1963) 1 SCNLB 117; EMEGOKWE v. OKADIGBO (1973) 4 SC.113.
The Nigeria Customs Service Board, the 4th Appellant, is a parastatal, established by Section 1(1) of the Nigeria Customs Service Act, 2004. Chapter 16 Rule 160103 of the Public Service Rules is categorical that –
“Parastatals are to retain and improve existing rules, procedures and practices in their establishments and ensure that there are no deviations from the general principles contained in the Public Service Rules – . However, in the absence of internal rules and regulations on any matter, the relevant provisions of the Public Service Rules shall apply.
There is no evidence, I repeat, that the 4th Appellant has, pursuant to Section 9 of the enabling Act, made any rules or regulations relating to retirement or compulsory retirement of officers in the Nigeria Customs Service. It follows therefore, that the compulsory retirement of the Respondent is governed by the Public Service Rules, particularly Section 8 Rule 020810(i) thereof.
The Nigeria Customs Service Board, the 4th Appellant, does not share with the Federal Civil Service Commission the basic powers or functions conferred expressly, by Paragraph II of the Third Schedule to the 1999 Constitution, as amended, on the Federal Civil Service Commission to make regulations relating to retirement of officers in the Public Civil Service of the Federation, and or rules relating to dismissal and exercise disciplinary control over persons holding such offices.
The Public Service of the Federation is Item 53 of the Exclusive Legislative List contained in Part 1 of the Second Schedule to the 1999 Constitution. The Exclusive Legislative List is drawn pursuant to Section 4(2) of the said Constitution.
Section 153(1)(d) of the said Constitution establishes the Federal Civil Service Commission. By dint of Section 159(1) of the Constitution, the Federal Civil Service Commission, being one of the bodies expressly established by Section 153(1) of the Constitution, is an independent body which shall not be subject to the direction or control of any other authority or person. The Federal Civil Service Commission, by virtue of Section 160(1) of the Constitution, may, with the approval of the President, make rules to “regulate its own procedure or confer power and impose duties on any power or authority for the purpose of discharging its functions”, which are expressly stated in Paragraph II of the Third Schedule to the Constitution.
Section 3(a) of the Nigeria Customs Service Board Act cannot be used as the pretext for making Exhibit 24 empowering the 1st, 2nd and 4th Appellants to compulsorily retire from service, officers who had spent 10 years on duty post of Comptrollers but who are yet to qualify for compulsory retirement prescribed in the Public Service Rules. That would be contrary to, and in conflict with, not only the Respondent’s existing terms of contract of service, but also the general principles of the Public Service Rules. Coming, as I do to this conclusion, I am in complete agreement with the Court below that “a statement of policy, general or otherwise by the 4th Appellant, cannot overrule or wipe away the specific provisions of the Public Service Rules made by the Federal Civil Service Commission which are written into the terms of pensionable contract of an officer in the Public

…………………….F…………………….

Service.”
It is crystal clear from the express provisions of Section 153(1)(a), 159(1), and 160, read together with Paragraph II of the Third Schedule of the 1999 Constitution, as amended, that the Public Service Rules are made pursuant to the powers conferred on the Federal Civil Service Commission by the Constitution. See FEDERAL CIVIL SERVICE COMMISSION v. J.O. LAOYE (1989) 4 SC (pt.11) 1; (1989) 2 NWLR (Pt.106) 652. They are accordingly a bye-law of the Constitution. They have been made with the main object and intention of protecting officers, particularly those holding pensionable employment, in the Public Service of the Federation. In interpreting these Public Service Rules, I will choose the approach advocated by Nnamani, JSC in F.C.S.C. v. LAOYE (supra) wherein His Lordship, adopting the opinion of Viscount Simon, L.C. in NOKES v. DONCASTER AMALGAMATED COLLIERIES LTD. (1040) AC 1014, had stated:
“We should avoid a construction which would reduce the Legislation to futility and rather accept the bolder construction based on the view that the Parliament would legislate only for the purpose of bringing about an effective result.”
The main object and intention of the Constitution, in vesting in the Federal Civil Service Commission the power not only to appoint persons to offices in the Federal Civil Service but also to make rules regarding the manner they retire, or the manner they are compulsorily retired, therefrom are clear. They are to engender in the civil servants security of tenure, which they psychologically need for patriotic and honest discharge of their duties. Where the main object and intention of a statute are clear, the Court, in its interpretative power, must give effect to those main object and intention. The words and language used in the statute to convey its main object and intention shall be given their ordinary meaning. See UNIPETROL v. E.S.B.I.R. (2006) ALL FWLR 413 at 423; OBUSEZ v. OBUSEZ (2007) 30 NSCQR 329. The Constitution, in the powers or function it has vested in the Federal Civil Service Commission, should be so construed to achieve the purpose and object it is intended to achieve. See F.C.S.C. v. LAOYE (supra). The principle of the interpretation of the Constitution laid down by this Court in NAFIU RABIU v. KANO STATE(1980) 8 – 11 SC 130, 148 – 149 is that the words of the Constitution or statute are not to be read with stultifying narrowness, but are to be read and given the meaning that will effectuate their purpose. See also A. G. FED. v. A.G. ABIA STATE (2001) 7 SC. (Pt.1) 32.
This Court, in SHITTA-BEY v. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 S.C (Reprint) 26, made it clear that the Civil Service Rules (or Public Service Rules) made by the Federal Civil Service Commission, pursuant to the powers vested by the Constitution, govern conditions of service of Federal Public Servants. The Public Service Rules are not only a by-law of the Constitution; they also have added constitutional flavour to the employment governed thereby. They take the relationship between the civil servant and the government beyond the ordinary or mere master and servant relationship. It behoves the Appellants, particularly the 1st and 4th Appellants, in their relationship with the Respondent herein to respect the Rules. They cannot, under the pretext of formulating policy guidelines on the Nigeria Customs Service Reform, tinker with the accrued rights of the Respondent to retire from the Civil Service of the Federation either upon attaining the age of 60 years, or having served for 35 years, whichever is earlier.
It appears to me that the particular provision of Exhibit 24 on which the Appellants relied to compulsorily retire the 2nd Plaintiff/Respondent, on the ground that he had served on the duty post of Comptroller for 10 years, is a mere statement of policy intent. It has no force of law and it is in conflict with the provisions of Section 8 Rule 020810(i) or Section 8 Rule 020810(ii), read together with Chapter 16 Rule 160103, of the Public Service Rules, 2008 which provide that “the compulsory retirement age for all grades of officers in the service shall be 60 years or 35 years of pensionable service, whichever is earlier.”
For avoidance of any doubt, an officer who has remained on a duty post for 10 years could be made to vacate that duty post by the management of Nigeria Customs Service.
Such officer cannot however, be compulsorily retired from the Service by the Appellants unless the officer had attained 60 years of age or had spent 35 years in service, whichever is earlier.
The Court below, upon coming to the conclusion that the employment of the 2nd Plaintiff/Respondent, who was the appellant before it, “had statutory flavour and so he did not hold (his) office at the pleasure” of the 2nd Appellant herein, held that his “premature retirement was therefore unlawful, null and void.” I cannot fault the judgment of the Court below on this. It also correctly in my view, held that the 2nd Plaintiff/Respondent, who was the appellant before it, was entitled to be reinstated, on the authority of ADEDEJI v. POLICE SERVICE COMMISSION (1967) ALL NLR 72; OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (pt.9) 599; IDERIMA v. RIVERS STATE CIVIL SERVICE COMMISSION (2006) 133 LRCN 217 and OLORUNTOBA OJO v. ABDULRAHEEM (2009) 15 NWLR (Pt.1157) 83. I hereby affirm the holding.

…………………….G…………………….

There is no substance in this appeal. My answer, therefore, to the question: whether the Court below was right in setting aside the judgment of the trial Federal High Court delivered on 14th December, 2012 in the suit No. FHC/ABJ/CS/277/2011 reinstating the Respondent in the service of the Nigeria Customs Service, is that the Court below was right to so hold and order. The appeal is hereby dismissed. The decision of the lower Court, including the consequential orders therein made, delivered on 11th July, 2014, in the appeal no.CA/A/248/2013, are hereby affirmed with costs assessed at N200,000.00 to the Respondent.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother EJEMBI EKO JSC just delivered.
I agree with his reasoning and conclusion that the appeal is devoid of merit and should consequently be dismissed.
I therefore order accordingly and affirm the judgment of the Lower Court.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I had the privilege of reading in draft the lead judgment of my brother Ejembi Eko JSC just delivered. I agree entirely with his reasoning and conclusion that the appeal lacks merit and that it be dismissed.
It has become trite that employments that have statutory flavour can only be terminated in the manner allowed by the very statutes that provided for them. See Kunle Osisanya v. AfriBank Nigeria Plc (2007) 6 NWLR (Pt.1031) 565 and Bamgboye v. University of Ilorin(1999) LPELR  737 (SC).
The respondent had approached the trial Court asserting that he was prematurely retired by the appellants notwithstanding the fact that the Public Service Rules had provided in Section 8 thereof that:-
“he can only be compulsorily retired on the attainment of sixty years or thirty five years of pensionable service, whichever happens first.”
His case is that at the time of his purported retirement by the appellants, neither event had occurred. Inspite of the trial Court’s profound finding at page 561 of the record of appeal in respondent’s favour, the Court found no merit in his claim and dismissed same. The lower Court, at page 778-779 of the record, affirmed the trial Court’s finding and proceeded to find for the respondent.
The appellants have argued that the lower Court is wrong in reinstating the respondent having found his retirement by the appellants in clear breach of the Public Service Rules that provided for it. I disagree.
The law on the point must be restated thus:- where a statute clearly provided for the employment and discipline including an employee’s retirement and even dismissal, the employment must be terminated in the way and manner prescribed by the relevant statute and any other manner of termination inconsistent with what the statute prescribed is null and void. See E.P. Iderima v. Rivers State Civil Service Commission LPELR-1420 (SC). In Chief Tamunoemi Idoniboye-Obu V. Nigerian National Petroleum Corporation (2003) LPELR  1426 (SC) this Court has held that for rules and regulations to avail a plaintiff as constituting the terms and conditions of his employment capable of giving it statutory flavor and the attendant protection, the rules must be established to be:-
(1) regarded as mandatory
(2) directly applicable to him or persons of his cadre.
(3) intended for the protection of the employment.
(4) breached in the course of determining the employment.
In the case at hand, the respondent who has met all the foregoing requirements is entitled to succeed in his claim. The lower Courts decision in this regard is beyond reproach.
It is for the foregoing and more so the fuller reasons contained in the lead judgment that I also dismiss the unmeritorious appeal. I abide by the consequential orders including the order on costs made in the lead judgment.

…………………….H…………………….

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, Ejembi Eko, JSC obliged me with a copy of the judgment just delivered. His Lordship has exhaustively considered and ably resolved the issues in contention in this appeal. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.
The sole issue for determination in this appeal is whether the learned Justices of the lower Court were right in setting aside the judgment of the High Court of the Federal Capital Territory and ordering the respondent’s reinstatement in the service of the Nigeria Customs.
The respondent herein and one other instituted an action by a writ of summons and statement of claim filed on 25/2/2011 before the Federal High Court, FCT Judicial Division to challenge their premature retirement from the Nigeria Customs Service on 21st December 2009 in a manner that was not in compliance with the provisions of Public Service Rules, which governed their employment. The appellants, on the other hand, contended that the respondent’s retirement was pursuant to the Policy Guidelines on Customs Service Reform whereby an officer could be removed for the following reasons:
a) Not making effective and positive contributions.
b) Declining productivity after many years in service.
c) Pending disciplinary cases against an officer.
d) Advanced age.
e) Officers who have served for extended periods of time on the same grade may be disengaged to allow for the innovative potentials of young and hardworking officers.
(see pages 710 – 711 of the record).
It was the appellants’ contention that the respondent and other Comptrollers had served between 10 and 21 years on the same rank and were therefore properly retired pursuant to Subparagraph (e) above.
The respondent transferred his services to the Nigeria Customs Service in 1991 after spending 9 years in the service of Sokoto State Government. He rose to the position of Comptroller of Customs on GL 15 with effect from 01/01/2000.
There are three categories of contracts of employment. They are:
(a) Purely master and servant relationship,
(b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavor.
See: Longe Vs F.B.N. Plc (2010) 6 NWLR (Pt.1189) 1.
An employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: Imoloame Vs W.A.E.C. (1992) NWLR (Pt.265) 303; Olaniyan vs University of Lagos (1985) 2 NWLR (Pt.9) 599; Shitta-Bey v. Public Service Commission (1981) 1 SC 40. It is not in dispute between the parties that the respondent’s employment was governed by the Civil Service Rules 2008. In other words, his employment enjoyed statutory flavour.
The law is settled that the only way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See: Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt.622) 290; Olatunbosun Vs N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25; Longe v. F.B.N. (supra).
Chapter 2 Section 8 Paragraph 020810(i) of the Public Service Rules provides:
“The compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier.”
It is pertinent to note that there was a positive finding of the trial Court at page 561 of the record, after a forensic examination of the pleadings and documentary evidence before it, as follows:
“Both Exhibits 11 and 19 showed the 2nd plaintiff’s date of birth to be 1956. So the issue of his date of birth is not in contention. I therefore agree with the 2nd plaintiff that his date of retirement by age is 19th December 2016 and by years of service to be 9th September 2018. It is clear therefore that his retirement in 2010 was premature.”
The 2nd plaintiff referred to is the present respondent. It is pertinent to note that there is no appeal against the finding to the respondent’s date of retirement either by age or years service. The finding is therefore binding on the

…………………….I…………………….

parties.
Notwithstanding this finding, the trial Court relied on Policy Guidelines and Paragraph 3 of Exhibit 1 to hold that since he was promoted to the rank of Comptroller with effect from 15th June, 2000 he had served in that rank for more than 10 years and was properly retired from service in December 2009 and dismissed the suit.
I am in complete agreement with my learned brother, Ejembi Eko, JSC that the appellant’s Policy Guidelines on Nigeria Customs Reform do not qualify as a subsidiary legislation. The guidelines are subordinate to and cannot override the statutory provisions of the Public Service Rules.
Besides, Section 4 of Paragraph 160401(a) of the Public Service Rules provides that the provisions of Section 8 in Chapter 2 of the Public Service on leaving the service shall apply to all Parastatals, as contained in each parastatal’s conditions of service. The Nigeria Customs Service is one of such parastatals.
The Court below at pages 779, 780 – 781 of the record held:
By Chapter 2, Section 8 Paragraph 020810(1) of Public Service Rules, the compulsory retirement age for all grades in the service shall be 60 years or 35 years of pensionable service whichever is earlier. This applies to the 2nd respondent by virtue of Chapter 16, Section 1 Paragraph 160103 and Section 4 Paragraph 160401(a) of the Public Service Rules. A statement of policy, general or otherwise, cannot overrule or wipe away specific provision of the Public Service Rules especially where such policies are not written into the terms of the contract of the employee, as in the instant case. I agree with appellant’s counsel that a decision of Court based solely on policy as in policy as in this instance, leads to uncertainly in the law…
The appellant’s employment had statutory flavour and so he did not hold office at the pleasure of the 2nd respondent. His premature retirement was therefore unlawful, null and void. He is entitled to be re-instated in the service.”
The above Finding is unassailable. The respondent’s retirement date by virtue of attaining 60 years of age, which was not in dispute was 19th December 2016. I find no reason to interfere with the sound reasoning.
For these and the more comprehensive reasons well adumbrated the lead judgment, I hold that this appeal is devoid of merit. It is accordingly dismissed. I abide by the orders made the lead judgment including the order for costs.
SIDI DAUDA BAGE, J.S.C.: I have had a preview of the Lead Judgment delivered by my learned brother Eko, JSC, and I agree with him that the Appeal lacks merit. I will add a few words of my own in total support.
This Court has done a marvelous work on the Court’s duty when faced with construction of a statutory provision to ascertained fact. See ADEWUMI & ANOR VS ATTORNEY GENERAL OF EKITI STATE (2002) 2 NWLR (Pt.751) 474 at 511. Per Wali JSC (as he then was). He stated as follows:-
“When a Judge is faced with construction, interpretation and application of a statutory provision to the facts ascertain by him in a case, he must:-
(a) Read the statute to ascertain whether and how its meaning relates to the case in controversy;
(b) If the language i.e. the words or meaning ascertained from that language resolves the controversy, the injury terminates there;
(c) But if the language or meaning does not resolve the controversy then the judge must adjust and apply an appropriate Judicial Rule to decide and resolve the case or the issue in controversy.

The Lead Judgment aptly discharged that duty in its construction to the Provisions of Section 9 of the Nigerian Customs Service Act, 2004, on one hand, and the role of the Public Service of the Federation as Item 53 of the Exclusive Legislative List contained in Part 1 of the Second Schedule to the 1999 Constitution on the other hand. The said Exclusive Legislative List is drawn pursuant to Section 4(2) of the Constitution of Federal Republic of Nigeria. By the combined provisions of Sections 153(1)(d) to 159(1), and 160(1) of the Constitution of the Federal Republic of Nigeria, the Federal Civil Service Commission may, with the approval of the President make rules to regulate its own procedure or confer
power and impose duties on any power or authority for the purpose of discharging its functions,”
 which are expressly stated in Paragraph II of the Third Schedule to the Constitution. The statement of policy, general or otherwise by the Nigerian Customs Service Board, the 4th Appellant, cannot overrule or wipe away the specific Provisions of the Public Service Rules made by the Federal Civil Service Commission which are written into the terms of Pensionable Contract of an Officer in the Public Service.
It is for this and other reasons in the Lead Judgment that I also dismiss the Appeal, affirm the decision of the Court below, and abide by the Order as to costs contained in the Lead Judgment.

Appearances

C. I. Okpoko, Esq. (Asst. Director, FMOJ) with him, Mrs. Habiba U. Chime (Asst. Chief State Counsel, FMOJ), Mrs. Ricamoris M. Shittu (Principal State Counsel, FMOJ), Mrs. Ikemhe Ekwere Bello (Senior State Counsel, FMOJ)- For Appellants

AND

G. T. Afolabi, Esq.- For Respondent

Leave a Reply

Your email address will not be published. Required fields are marked *