Terminating Contract of Service Governed by Regulations, Rules or Statutory Instrument: Effect

The Respondent and a certain Comptroller A.A. Ahmed, were Comptrollers of Customs in the Nigeria Custom Service. On 21st December, 2009, without notice to them, they were discourteously and capriciously locked out of their respective offices by the representatives of the 1st and 2nd Appellants, on the ground that they had been purportedly retired from the service of the 2nd Appellant on the instruction of the 3rd Appellant. They made several attempts to have the matter resolved out of Court and their retirements rescinded, all to no avail. They therefore, instituted an action at the Federal High Court against the Appellants, to challenge their purported retirement.

At the trial Court, the Respondent contended that, pursuant to Section 8 Paragraph 020810(i) of the Public Service Rules, he can only be compulsorily retired upon attaining the prescribed retirement age of 60 (sixty) years or after 35 (thirty-five) years in service. The Appellants, on the other hand, contended that the 4th Appellant is empowered to compulsorily retire the Respondent, by virtue of a Policy Guideline on Nigeria Customs Service Reform (Exhibit 24) it issued, in accordance with its powers under the Nigeria Custom Service Act. At the conclusion of the trial, the Court found that the Respondent’s retirement was premature; however, it dismissed the suit on the ground that the 4th Appellant was empowered to compulsorily dismiss the Respondent by virtue of Exhibit 24. The Respondent successfully appealed to the Court of Appeal. Dissatisfied with the decision of the Court of Appeal, the Appellants appealed to the Supreme Court.

Issue for Determination The sole issue formulated for determination of the Court by the Appellants and adopted by the Respondent was:

Whether the learned Justices of the Court of Appeal were right in setting aside the judgement of the trial Court and re-instating the Respondent to the service of the Nigeria Customs Service.

The Supreme Court posed the question below as germane for resolution of the appeal:

“As 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 the question is: - “In the event of conflict between the two, which of these instruments takes precedence over the other?”

Arguments The Appellants relied on the provisions of Section 8 Rule 020206(ii) of the Public Service Rules, 2008 which provides that an officer shall be required to leave office if his service is no longer required in the event of abolition of office, re-organisation of the office or redundancy, in arguing that they could lawfully effect the Respondent’s compulsory retirement from service. They submitted also that pursuant to Section 3(a) of the Nigeria Customs Service Board Act, the 4th Appellant is empowered to issue Policy Guidelines for the reform of Nigeria Customs Service, and that the Respondent’s retirement was proper and in line with the Policy Guideline (Exhibit 24) issued by the 4th Appellant. The Appellants argued further that the Respondent had served as Comptroller of Customs for 10 (ten) years, and was due for compulsory retirement in accordance with the Policy Guidelines for the reform of the Nigeria Customs Service.

The Respondent on the other hand relied on the provisions of Section 8 Paragraph 020810(i) of the Public Service Rules to argue that he was required to retire mandatorily either upon attaining 60 (sixty) years of age or after 35 (thirty-five) years in service, whichever was earlier. He relied on the computation based on Exhibit B3 (his Service Information Print out) from his record of service kept by the Appellants, and stated that he would have attained the compulsory retirement age of 60 (sixty) on 19th December, 2016 or completed his 35 (thirty-five) years in service on 9th September, 2018. He contended that his records put him out as a worthy and dedicated officer, entitled to be “decorated with national honours”, rather than the shoddy manner in which he was shoved out of office by the premature retirement.

Court’s Judgement and Rationale The Supreme Court held that the 4th Appellant was established by the Nigerian Customs Service Board Act and by Section 3 of the Act, it is vested with the responsibility for formulating the general policy guidelines for the Nigeria Customs Service, subject to the approval of the Minister of Finance. Also, Section 9 of the Act empowers the 4th Appellant to make regulations relating generally to the conditions of service in the 2nd Appellant, subject to the approval of the Minister of Finance. In this case, there was no evidence before the Court that the Policy Guidelines (Exhibit 24), issued by the 4th Appellant, was approved by the Minister of Finance. There was also no evidence before the Court, that the 4th Appellant has made any rules or regulations relating to retirement or compulsory retirement of Officers in the Nigeria Customs Service, pursuant to Section 9 of the Act.

On Section 8 Rule 020206(ii) of the Public Service Rules, 2008 relied on by the Appellant, the Supreme Court held that, it was not their case or defence that they were constrained to retire or terminate the employment of the Respondent prematurely, because his office has been abolished or his office has been re-organised or that he has become redundant. The Appellants, did not plead any facts in this regard.

Further, the Court opined that the 4th Respondent is a parastatal established by Section 1(1) of the Nigeria Customs Service Act, 2004, and that by Chapter 16 Rule 160103 of the Public Service Rules, clearly, parastatals are to retain and improve existing rules, procedures and practices in their establishments. They are also to 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. The Court held that it is certain that the Respondent, like any other staff in the Nigeria Custom Service, holding a pensionable employment, holds the employment with statutory flavour. The relationship between the Respondent and the Board is not, nor was it intended to be that of an ordinary master-servant, in which the employee holds the employment at the pleasure of the master. The Public Service Rules has established an authoritative standard or principle of determining appointments or employments regulated thereby, which negate the use of brutal force or strong arms. The conduct of the Appellants is antithetic to the rule of law.

Further, 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 regard 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 approval of the Minister. Exhibit 24 does not fall into the category of subsidiary legislations.

Their Lordships concluded that, the compulsory retirement of the Respondent is governed by the Public Service Rules, particularly Section 8 Rule 020810(i). The particular provision of Exhibit 24 on which the Appellants relied on to compulsorily retire the 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. “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 Service Commission, which are written into the terms of pensionable contract of an officer in the Public Service.”

Based on the foregoing, the Supreme Court dismissed the appeal, and affirmed the reinstatement of the Respondent into the service of the 2nd Appellant. Representation: C. I. Okpoko, Esq. (Asst. Director, FMOJ) with Mrs. Habiba U. Chime (Asst. CSC, FMOJ), Mrs. Ricamoris M. Shittu (PSC, FMOJ), Mrs. Ikemhe Ekwere Bello (SSC, FMOJ) for Appellant

G. T. Afolabi, Esq. for Respondent Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))

"THE RESPONDENT, LIKE ANY OTHER STAFF IN THE NIGERIA CUSTOM SERVICE, HOLDING A PENSIONABLE EMPLOYMENT, HOLDS THE EMPLOYMENT WITH STATUTORY FLAVOUR. THE RELATIONSHIP BETWEEN THE RESPONDENT AND THE BOARD IS NOT, NOR WAS IT INTENDED TO BE THAT OF AN ORDINARY MASTER-SERVANT, IN WHICH THE EMPLOYEE HOLDS THE EMPLOYMENT AT THE PLEASURE OF THE MASTER. THE PUBLIC SERVICE RULES, HAS ESTABLISHED AN AUTHORITATIVE STANDARD OR PRINCIPLE OF DETERMINING APPOINTMENTS OR EMPLOYMENTS REGULATED THEREBY, WHICH NEGATE THE USE OF BRUTAL FORCE OR STRONG ARMS"