How Customs Defied Supreme Court, Malami, Adeosun Over Sack of Comptroller
When Comptroller of Post Clearance Audit (PCA), Abdullahi Bello Gusau, uncovered a N1.3 billion fraud on December 17, 2009, he didn’t have the premonition that the heroic act will earned him a sack four days later.
Gusau discovered that fraud of underpayment of import duty by online auditing of only 20 Single Goods Declaration (SGD) forms at Apapa Area Command. This was just a tip of the iceberg because hundreds of such SGD forms were generated daily at the Apapa command.
He submitted his findings in writing to the then Comptroller General of Customs Abdullahi Dikko Inde, and four days later he was summarily sacked from the Nigeria Customs Service (NCS) through a public notice on NTA 9pm network news on December 21, 2009.
Before this incident, on September 12, 2008, Gusau was posted to the FCT Area Command as comptroller. By October 2, 2008, he uncovered an unpaid import duty revenue totaling N111 million at the Nnamdi Azikiwe International Airport Abuja.
He notified the Customs headquarters of the fraud, and explained the actions he took which included asking the defaulting company to refund the money.
On October 22, the then Assistant Comptroller General of Customs (Headquarters) Dikko Inde, wrote a commendation letter to Gusau for outstanding performance.
Suddenly, Gusau was later removed from the FCT command and transferred to headquarters as Comptroller Post Clearance Audit, the beat where he uncovered the N1.3 billion fraud that earned him a sack. 8 years of legal battle Comptroller Gusau rushed to the Federal High Court Abuja to challenge his premature and illegal sack. He lost the case on technical grounds.
He proceeded to the Court of Appeal, Abuja, where he won in 2014. The Court of Appeal Abuja in its judgement No CA/A/248/2014, delivered on July 11, 2014, unanimously declared that Gusau should be “reinstated, enjoy his Lawful Promotions,” and “be paid all his benefits and emoluments therein.”
The Customs under Dikko Inde’s administration refused with to comply with the Appeal Court judgement. Instead, it served Gusau with re-engagement letter for six months contract, contrary to the Court of Appeal judgment.
When Gusau complained that the judgement was not complied with, the NCS withdrew the same letter of re-engagement, after posting him to Garki as Comptroller Statistics and zonal office Yaba Lagos at the same time. He was paid only two months salaries of January and February, 2015.
The Customs also failed to comply with the NCS Board decision which ordered Dikko Inde to comply with the judgement and reinstate Gusau to enable him come back and complete the remaining years of his service.
Instead of heeding its board’s advice, the then comptroller salary in the account section of NCS Garki Abuja, stopped Gusau’s salary through a handwritten “stop pay” instruction to the ICT unit.
When the NCS failed to comply with the Appeal Court judgement, Gusau had no option than to proceed to the Supreme Court for justice. What Supreme Court said In its unanimous judgement delivered on April 7, 2017, the Apex Court affirmed the Court of Appeal judgement, and made consequential orders as follows:
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 plaintiffs’ 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 Customsand to be paid all their benefits and emoluments therein and also to enjoy their lawful promotions.” Customs’ series of defiance More than a year after the Apex Court judgement, the NCS has refused to comply with the judgement. This is despite pleas and advice from the offices of ministers of justice and finance.
The office of the Attorney General and Minister for Justice Abubakar Malami wrote letters to the Comptroller General of Customs Hameed Ali on November 30, 2016, August 29, 2017, as well as another letter dated April 25, 2017, and February 12, 2018, personally signed by the minister, asking him to comply with the judgement “in order not to expose the service (Customs) to unwarranted embarrassment.”
The Minister of Finance also wrote the Customs CG Hameed Ali on July 7, 2017, requesting “for an update” on Ali’s “compliance with the order of the Supreme Court.” But all these couldn’t make the Customs to budge.
Gusau, through his counsel, Gbenga Afolabi, wrote letters of appeal for intervention to President Muhammadu Buhari, Minister of Justice, Minister of Finance, Chief Justice of the Federation, Nigeria Customs Service Board, Nigeria Judicial Service Commission, among others. Customs has complied – spokesperson In its reaction, the Public Relations Officer of Customs, Deputy Comptroller Joseph Attah, told Daily Trust on Sunday that upon receipt of the court verdict, Gusau was reinstated, while his allowances and the compensation which the court determined are being calculated.
Attah said Gusau was asked to come to the headquarters and sign the document for onward processing by the accounts section.
Attah said: “He secured this court verdict that said he should be reinstated and given all his entitlement, and even talked about promotion.
“When you secure a verdict, the verdict is not intended to re-write the norms of the organization. The verdict will be interpreted in the context of the organization. If he has been shortchanged, within the context of that organisation.
“The Service upon the receipt of this verdict drafted a letter to him, let it be known that even if he had been in the service, he was supposed to have retired in 2016.
The first condition in that letter we drafted to him was that by the virtue of this verdict, you are hereby reinstated. The second condition was that all your emolument, salaries and allowances from that time, graduated till the time of your retirement will be given to you,” the PRO explained.
He noted that there is a particular amount the court said should be paid to him. “It is also written in the letter. Another condition is that because your statutory service expires in 2016, you are also hereby retired from that time,” Attah said.
Attah said but Gusau’s argument was that he should be reinstated first and the letter sent to him fulfiled the first condition: “That he was hereby reinstated.”
“His salaries will be paid and compensation will be paid but his retirement was from 2016. All he needed to do was sign the document so the account could process his payment,” Customs said.
Customs compliance ridiculous – Counsel
But the counsel to Gusau, Gbenga, Afolabi, faulted Customs spokesperson’s claims, saying the NCS willfully refused to implement the Supreme Court orders and decided to simply write Gusau a purported letter of retirement, claiming that they had complied with the judgment.
He said “the Supreme Court has already re-instated Comptroller Gusau into the Customs service by its judgement handed down in his favour on April 7, 2017. claims
Comptroller Gusau had spent more than 17 years on the present comptroller rank, Barrister Afolabi said.
“Therefore the situation is back to the status quo. He is, therefore, in the eyes of law a Comptroller of Customs. The NCS authority should have formalized our client’s (Gusau) promotions by serving him with promotion letter and thereafter direct FATS, Establishment and Salary section to process the payment of his outstanding monthly salaries, benefits and entitlements accordingly.”
The letter of May 16, 2017 signed by ACG Abbas unilaterally ignores the lawful promotions which he was overdue and eligible for it since before his unlawful termination in December year 2009, the counsel said.
He said Gusau was last promoted to comptroller in June 15, 2000, but due to illegal premature retirement and victimization which he was subjected to, remained stagnant on the comptroller rank for more than 17 years ago without promotion to the next level.
He said this is a gross violation of the provision of Scheme of Service for Customs Service. “This is because a Comptroller of Customs who spent at least four years on present or substantive grade of Comptroller rank is eligible for promotion to the next higher level,” he said.
The Scheme of Service for Customs Service of the Federal Republic of Nigeria official gazette No.24 Vol. 89 stated as follows: “Promotion to Assistant Comptroller-General of Customs UPSS 16 (ACG) is by promotion of a suitable Comptroller of Customs (General Duty) who has spent at least four years on the grade…etc.”
He said Gusau was not only eligible for promotion since 2004 but equally qualified for it considering the seniority, federal character and the zone he belongs to.
The lawyer said, instead of Customs spokesperson to try to interpret the judgement, “we believe that CJN of the Supreme Court of Nigeria who is the Chairman of NJC, the Justices of Supreme Court, the Justices of Court of Appeal Abuja and the Hon. AGF and Minister of Justice who is the Chief Law Officer are in a highest position of authority to decide any legal matter.”
“Approval of a court ruling ought to be obeyed and respected by all, talk less of the NCS authority. What the NCS did therefore in this regards is a willful violation of the supremacy of the country’s law system,” the counsel said.
He said “it is pertinent to note that, in the history of NCS, no senior officer of Zamfara State origin has ever been promoted to ACG or DCG. Currently no serving senior officer of the rank of comptroller of customs of Zamfara State origin is the service since 2014 to date.”