Mr Fanny Amun -VS- Federal Civil Service Commission & ORS

IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HER LADYSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE

DATE: AUGUST 3, 2023                                           SUIT NO: NICN/ABJ/102/2020

BETWEEN                               

MR FANNY AMUN (MON)                                                            CLAIMANT

AND

1. FEDERAL CIVIL SERVICE COMMISSION                           DEFENDANTS

2. THE ATTORNEY GENERAL OF THE FEDERATION                                            

REPRESENTATION:

Lawal Pedro, SAN for the Claimant, with P. A. Ameh, Uduak Umoren.

B. C. Itotup the 1st Defendant.

A. O. Akinde for the 2nd Defendant.

                                                         JUDGMENT

Introduction and Claims

[1] The Claimant commenced this suit against the Defendants on the 10th June 2020 by way of originating summons together with the accompanying processes. By order of Court on 4th March 2021, the parties were directed to file pleadings. The Claimant filed his statement of facts and accompanying processes on 15th March 2021. He is seeking the following reliefs:

a)     A Declaration that by virtue of paragraph 020810 of Section 8 of the Public Service Rules 2009, the compulsory retirement age of a public servant like the Claimant from the service of the Federation is 60 years old or 35 years in service.

b)    A Declaration that in the absence of proof of the allegation of abscondment from duty levelled against the Claimant and the breach of his fundamental right to fair hearing by the Ministry of Youth and Sports and the Defendants in the determination of the allegation, the Claimant is entitled to reinstatement and not commutation of his unlawful dismissal to retirement from service by the Defendants.

c)     A Declaration that by virtue of the provision of paragraph 020810 of Section 8 of the Public Service Rules 2009, the compulsory retirement of the Claimant from service of the Federation with effect from 31st January, 2007 vide the Defendant's letter Ref No. FC.623/S.13/C4/125 dated 16th March, 2020 when he has not attained the age of 60 years old or 35 years in service is unlawful, null and void.

d)    AN Order of reinstatement of the Claimant as a Director in the public service of the Federation and payment of his past salaries and allowances from 1st of September, 2006 till date of reinstatement

IN THE ALTERNATIVE TO (d) ABOVE

e)     AN Order that the retirement of the Claimant as a Director from the service of the federation shall be with effect from 16th of March, 2020 (being the date of his letter of retirement) and shall be paid his past salaries and allowances from 1st September, 2006 to 15th of March, 2020.

f)      N15,000,000.00 Cost of this action, Solicitors fee inclusive.

The 1st Defendant entered a conditional appearance and did not file a statement of defence. The 2nd Defendant’s statement of defence and accompanying processes is filed on 29th June 2021.

Case of the Claimant

[2] The Claimant’s case on the pleadings is that he was employed on 6th of January, 1989 by the National Sports Commission on a temporary appointment as Assistant Football Coach. He stated that after 24 months his appointment was confirmed by the National Sports Commission, and it became a Parastatal of the Federal Ministry of Sports and Social Development and he became a staff of the Ministry. The Claimant stated that he rose by promotion to the post of Chief Coach Grade level 14 in the National Sports Commission. The Claimant averred that on the 21st of September, 2005, the Ministry of Sports and Social Development, and the 1st Defendant regularized his appointment in the Federal Civil Service, his transfer to the Ministry and advancement to the post of Assistant Director (Sports) Salary Grade 15 with effect from January 2005.

[3] The Claimant averred that he was charged with  coaching different cadres of the National Football Team and also served as Technical Director and Chief Coach of the female and male National football teams, the Falcons and the Super Eagles.  The Claimant stated that due to his immense contributions to the development of sports in Nigeria, particularly football, he earned the National Honour Member of Order of Niger (MON), and Ambassador of sports, peace youth football ICPM. The Claimant stated that his problems started when the last qualification game for the 2006 FIFA World cup finals (Super Eagles vs. Angola) was hosted in Kano State and the result was a score draw which caused Nigerias non qualification. The Claimant stated that on the oral directives of the Director of Sports (Dr Amos Adamu), his salary was suspended without official letter or memo to that effect, from September 2006 and he was also removed as the Secretary General of the NFA, redeployed from NFA to the Ministry of Sports without an official letter to that effect. The Claimant stated that after 6 months of his redeployment to the Ministry, he was not posted to any office or assigned any duty and his monthly salary was withheld despite several entreaties and appeals.

[4] The Claimant averred that out of frustration and not of his free-will, he decided to apply to the Ministry to voluntarily retire from the Civil Service and a copy of his letter was sent to the 1st Defendant notifying it of his intention. That when he did not get any response to his request of retirement, he wrote two letters dated the 28th of June, 2010, and 27th July, 2011 which were both received by the Ministry and the 1st Defendant. The Claimant stated that he decided to appeal to the Head of Service of the Federation on the 17th November, 2015 and when there was no response, he wrote another appeal on the 3rd of March, 2016 to the Head of Service. The Claimant stated that he received a reply from the Head of Service dated the 15th of August, 2016 where he was informed him for the very first time that he had been dismissed from civil service with effect from 23rd January, 2007 on grounds of abscondment from duty.

[5] The Claimant averred that after the 20th of January 2007 when he handed over as Secretary General of the NFA, and after his purported dismissal on the 23rd January 2007, he performed duties or assignment as a member of the sub-committee of the local organizing committee for the world wrestling professional (wwp) Common Wealth Championship; participated in the Stakeholder forum organized by the Committee on Sports of the House of Representative, Consultation with the Congress of the Nigeria Football Federation, Chairman, Project Committee-Arsenal during Arsenal Football tour of Nigeria in 2012, and attendance at the Annual General meeting of the Nigerian Football Federation (NFF).

[6] The Claimant stated that he was not served with any query for abscondment and was not served any notice to attend any Senior Staff Committee (disciplinary) meeting of the National Sports Commission or of the Ministry of Youth and Sports to defend himself of the allegation before he was recommended to the 1st Defendant for dismissal. He averred further that the Federal Civil Service Commission did not invite him to its meeting of 18th December, 2008 or given him the opportunity to defend himself before it ratified the decision to dismiss him from service. The Claimant averred that his dismissal from the Federal Civil Service was not in accordance with the Public Service Rules, due process of law; and his constitutional right to fair hearing. The Claimant averred that on the 29th of August, 2016, his solicitors wrote a letter to the 1st Defendant for a review of the dismissal. That when the Defendant did not respond to his Solicitors' letters, a pre-action notice dated 30th September, 2016 was served on the Chairman of the 1st Defendant and the Attorney General of the Federation, was copied.

[7] The Claimant stated that he commenced an action in this Court to challenge his  dismissal and to seek for an order for his reinstatement. He stated that the suit was struck out to enable out of court settlement and that while he was waiting for the settlement to be finalised, he was on the 24th of March 2020 invited by the Defendants and given a letter dated 16th of March 2020 wherein the Defendants commuted his dismissal to retirement with effect from 23rd January 2007. The Claimant averred that by virtue of the Public Service Rules, the retirement age of a public servant is 60 years or 35 years in service, and he had not attained 60 years or 35 years on 23rd January 2007 when the compulsorily retire was to take effect. The Claimant further averred that his appointment is with statutory flavour and his dismissal is a nullity being in breach of his right to fair hearing as guaranteed by the Constitution and the Public Service Rules. He stated that the Defendants have failed to show that he committed any offence or misconduct in the public service.

Case of the 2nd Defendant

[8] The 1st Defendant did not file a statement of defence; but filed a motion for joinder dated 24th June 2021. The motion was heard on 26th April 2022 and was dismissed. The 2nd Defendant’s case on the pleadings is that the A-G is only responsible to put up appearance where the Federal Government is directly involved. The 2nd Defendant  averred that it is impossible to become a staff of another Ministry while having a subsisting employment with a parastatal without transfer of service or resignation from the former employment. The 2nd Defendant stated that it is only the Federal Civil Service Commission that is duty bound to regularize an appointment; and that an officer's salary cannot be stopped by an oral directive, nor can an officer be redeployed in the civil service without a written instruction. The 2nd Defendant stated that the Claimant did not at any time write to his office in respect of his voluntary retirement and he is not aware of the letter he wrote to the Ministry of Sports and Social Development, the Federal Civil Service Commission and the Head of Service of the Federation. The 2nd Defendant stated that he is not aware of the dismissal of the Claimant on grounds of absconding from duty.

[9] The 2nd Defendant averred that the rank of a Director in the civil or public service is not attained by long service or commitment alone without a vacancy for same being advertised, and qualified staff writing and passing the prescribed examination. The 2nd Defendant stated that the Claimant’s counsel did not at any time write to the office of the 2nd Defendant in respect of his predicament, and that the pre-action notice copied to his office was to inform him of the intention of the Claimant to commence a legal action and not directly written to him to act on. That this suit amounts to multiplicity of suit because the case alleged to have been struck out can still be relisted. The 2nd Defendant averred that it is not aware of the invitation of 24th March 2020, and the letter dated 16th March, 2020 commuting the purported dismissal of the Claimant to retirement with effect from 23rd January, 2007.

[10] The 2nd Defendant stated that the Claimant did not exhibited his birth certificate or statutory declaration of age to substantiate his claim that he has not attained the age of sixty.  He stated that the Claimant’s right to fair hearing was not breached and he was not wrongfully dismissed. The 2nd Defendant stated that this suit discloses no cause of action against him and can be adjudicated upon without joining him as a party. That a cause of action is a condition precedent for the competency of a suit and that this suit cannot be effectively determined without the joinder of the Ministry of Sports and Youth Development, National Sport Commission and the Head of Service of the Federation. The 2nd Defendant urged the Court to strike him out of this suit with substantial cost for being wrongfully joined.

[11] On the dates fixed for defence, the Defendants were absent from Court despite being aware, and being served with hearing notices. Consequently the Defendants were foreclosed.

Final Address

[11] The Claimant’s final address is dated 27th March 2023 and is filed the same day. The 2nd Defendant’s final address is dated 3rd March, 2023. The Claimant the filed a reply on points on 2nd May, 2023. The parties adopted their respective final addresses.

Learned counsel to the Claimant submitted one issue for determination:

Whether or not the claimant has proved his case and is entitled to judgment as per the reliefs claimed in the statement of facts

[12] He referred to section 131(1) of the Evidence Act and submitted that the onus is on the Claimant who asserts in a civil proceedings to plead both the facts he seeks to prove and lead cogent and credible evidence in proof of those facts on the balance of probability before judgment could be given in his favor, citing Okulaja v. Odubanjo [2017] LPELR-41949 CA, Olusanya v. Osinleye [2013] 7 NWLR (Pt 1367) 148, at 171. Counsel submitted that the position of the law is that a Defendant who fails to testify in support of his pleadings is taken to have abandoned all the averments contained in his statement of defence, citing FCDA v. Naibi [1990] 3 NWLR (Pt. 138) 270 at 281, MTN. Nig. Communication Ltd v Aquaculture Coop Farmers Society 2014 LPELR 24194 CA.  He further submitted that where the Defendant does not call evidence at trial, the onus of proof on the Plaintiff will be discharged on minimal proof, citing Ajidahun v Ajidahun [2000] 4 NWLR (Pt.654) 605 at 645, Darma v. Mustapha [2014] LPELR 43734 CA.

[13] Learned counsel submitted that Rules 030303 and 030307 of the Public Service Civil Rules, 2009 that provides for fair hearing draws its validity from Section 36 (1) of the 1999 Constitution as (amended). He argued that an employee has a right to fair hearing and if there are witnesses testifying against him, he has the right to cross-examine them as well as have the opportunity of scrutinizing any document used against him. He submitted that on the evidence adduced, the Claimant was not given a fair hearing.  It was his submission that by the provisions of the Civil Service Rules and Section 1 (1) of the Public Officers Protection Act, the Claimant’s employment is clothed with statutory flavor and so he cannot be properly or legally removed from  employment without strict adherence to the Public Service Rules, citing Federal University of Technology Yola v. Danjuma Maiwuya and 2Ors [2013] All FWLR (Pt. 677) Pp. 753, Obianwuna v. NEPA [2016] LPELR-40935 CA.

[14] Learned counsel contended that apart from the letter of retirement being in breach of the Public Service Rules, the retrospective effect of the said letter of retirement renders it more illegal, null and void as termination or retirement of an employee cannot have a retrospective effect, citing Underwater Engineering Co. Ltd & Anor v. Dubefon [1995] LPELR-3379 (SC), Page 11-12, Para D-B. He then urged the Court to hold that the Claimant has proved his case and he is entitled to judgment

[15] Learned Counsel to the 2nd Defendant submitted one issue for determination:

Whether the Claimant has disclosed any cause of action and/or sought any relief against the 2nd Defendant to warrant his joinder in this case?”

He submitted that the Claimant did not discharge the burden of proof placed upon him by law, as contemplated by the provisions of Sections 131 and 132 of the Evidence Act, 2011 to be entitled to the grant of any of the reliefs being sought in the suit against the 2nd Defendant, citing Oloruntoba-Oju v. Abdul-Raheem [2009] 13 NWLR (Pt. 1157) Pg. 83 F-H. Counsel argued that by the provision of Section 158(1) of the 1999 Constitution (as amended), the Federal Civil Service Commission is not answerable to anybody as regards the commutation of the dismissal of the Claimant to retirement. He argued that the Claimant did not furnish as evidence his birth certificate or a statutory declaration of age to prove that he has not attained sixty (60) years of age. He submitted that the Claimant is duty bound to adduce credible evidence in proof of his reliefs, citing Veepee Industry Ltd v. Cocoa Industry Ltd (2008) 1 NWLR (PT. 1105) 486, and relying on section 167 (d) of the Evidence Act, 2011.

[16] Learned Counsel submitted that the Claimant’s right to fair hearing was not breached in any way as the alleged denial of his right to fair hearing was not occasioned by a Court or Tribunal, relying on Section 36 (1) of the 1999 Constitution (as amended), CBN V. Amao [2010] 16 NWLR (Pt. 1219) 271. He argued that attaining the level of a Director in the Federal Civil Service is not automatic and that the Claimant has not annexed evidence that he wrote and passed any exam to entitle him to the appointment as a Director. Counsel argued that it is trite law that a declaration cannot be granted as a matter of course, it has to be established by concrete and credible evidence and cannot be granted even on admission, citing Dumez Nig. Ltd. v. Nwakhoba [2008] 18 NWLR (Pt.1119) 361 at 386, Paras B-C. He submitted that it is the law that the Defendant can rest his case on that of the Claimant where the Defendant is of the opinion that the Claimant did not make out a case sufficient for the Defendant to trouble himself by adducing evidence in rebuttal, citing MOBIL Prod. (Nig) Unltd v. Monokpo [2003] 18 NWLR (Pt. 852) 346 at 406, Paras C-E.

[17] Learned counsel submitted that there is no cause of action disclosed against the Attorney-General of the Federation in the pleadings citing A-G Kano v. A-G Federation [2007] 6 NWLR (Pt. 1029) 164 at 192. He argued that the presence of the Attorney-General of the Federation sued as 2nd Defendant is not required for the effectual and complete determination of this suit. It was his submission that the 2nd defendant is not a necessary party nor a proper party to this suit because the 2nd Defendant neither took part nor was he privy to the contract of employment of the Claimant and the subsequent dismissal and the alleged commutation to retirement of same. That it is improper to join as defendant persons against whom the plaintiff has no cause of action just as it in this instant case, citing Ajayi v. Jolayemi [2001] 10 NWLR (Pt 722) P. 516 SC at 537-538 Paras H-A. Counsel urged the Court to strike out the name of the 2nd defendant from this suit for want of disclosure of action and for being improperly joined.

[18] Learned Counsel submitted further on the issue of jurisdiction that this instant suit is an abuse of court processes as the Claimant admitted that he filed suit NICN/ABJ/381/2016- Between MR. FANNY AMUN (MON) V. FEDERAL CIVIL SERVICE COMMISSION & 2 ORS with same subject matter as this instant suit which suit was struck out. That instead of relisting the case that was struck out, the Claimant approached this Court to commence this instant suit while abandoning the former, citing Adesoji v. FUTA [2017] 9 NWLR (Pt. 1570) 208 at 221 Paras C-D. Counsel in conclusion urged the Court to dismiss the case of the Claimant for abuse of court process, failure to lead cogent and credible evidence and in the alternative strike out the name of the 2nd Defendant for want of disclosure of cause of action.

Reply

[19] Leaned counsel to the Claimant submitted that it is settled law that the Attorney General of the Federation is the Chief Law Officer of the Federal Government and all its agencies and in all civil matters in which a claim can be properly made against the Federal government or any of its agencies, arising from any act or omission complained of as in the present case, citing Kano State v Attorney General of the Federation [2007] 6 NWLR (Pt 1029) 164 at 192, paras B-C. That it is settled law that admitted facts need no further proof, citing Chief Timipre Marllin Sylva & 1Or v. INEC & 3ors (2018) 18 NWLR (Pt 1651) p. 310 at 321.

[20] Learned counsel submitted that any proceeding in breach of the principle audi alteram patem is a nullity and must be avoided, citing Eghobamien v Eghobamien [2013] 3 NWLR P. 362. He submitted that the case that was struck out was not determined on its merit and merely struck out; and that being the case it cannot make the subsequent action an abuse of court process. That though parties are the same, the issues and reliefs sought in the present suit are different from that of the earlier suit citing Awofeso v Oyenuga [1996] 7 NWLR (Pt. 460) 360. Counsel then urged the Court to discountenance the argument of the 2nd defendant and enter judgment in favour of the Claimant.

Decision

[21] I have carefully considered the processes filed, the evidence adduced, written submissions and authorities cited by the parties. I will begin with the submissions of learned counsel to the 2nd Defendant that the Attorney General is not a necessary party to this suit, and no cause of action is disclosed against him. A cause of action is defined as the aggregate of facts which the law will recognize as giving the Claimant a substantive right to make a claim against the relief or remedy being sought. It is a factual situation on which the Claimant relies to support his claim which must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. See Military Administrator of Benue State & Ors v Captain Clement Abayilo (2001) FWLR (Pt 45) 602 at 615, Ohakim v Agbaso (2010) 19 NWLR (Pt 1226) 172.

[22] There are no facts in the Claimant’s pleadings that disclose an infringement of his rights by the 2nd Defendant, or that show any employment relationship with the 2nd Defendant. All the actions complained of by the Claimant are made out only against the actions of the 1st Defendant. The 2nd Defendant has been made a party to this suit by virtue of his office as the Chief Law Officer of the Federation. A consideration of the pleadings does not disclose a cause of action against the 2nd Defendant to have warranted his joinder particularly as the reliefs sought if granted are within the purview of the 1st Defendant as the employer of the Claimant. The purpose of joinder of a person as a party to an action is that he should be bound by the outcome of the action, see Uku v Okumagba (1974) 3 SC 24 at 42. The issue to be settled in this action can be effectually and completely settled without the 2nd Defendant being made a party. See Green v. Green (1987) 3 NWLR (Pt. 61) 480; Ige v Farinde (1994) 7 NWLR (Pt 354) 42, Azubuike v. PDP & Ors (2014) LPELR- 22258 (SC) 26. The 2nd Defendant is not a necessary party to this suit.  Where the pleadings disclose no cause of action, it will be struck out and the suit dismissed against the Defendant, see NBC Plc v Ezeifo [2001] 12 NWLR (Pt 726) 11, Panache Communications Ltd. v. Aikhomu (1994) 2 NWLR (Pt. 317) 420 at 420. The suit is dismissed against the 2nd Defendant.

[23] After the close of the Claimant’s case, the Defendants failed to show up in Court in spite of being aware of the dates for defence, and the hearing notices sent. The 1st Defendant the Federal Civil Service Commission who is the employer of the Claimant did not file a statement of defence, but cross-examined the Claimant. There was no new evidence elicited from the cross-examination. The effect of the 1st Defendant’s failure to defend this action is that it is presumed to have admitted the case made against it by the Claimant as the facts are not contested. A trial court has little or no choice than to accept the unchallenged and un-controverted case placed before it by the Claimant. See Ifeta v Shell Petroleum Development Corporation of Nigeria Ltd [2006] Vol.6, MJSC 123, Consolidated Res Ltd v Abofar Ventures Nig. [2007] 6 NWLR (Pt 1030) 221, Okolie v Marinho [2006] 15 NWLR (Pt 1002) 316.

[24] This however does not mean automatic victory for the Claimant because he must succeed on the strength of his case and not rely on the fact that there is no defence before the court. The absence of a defence does not exonerate the Claimant of the evidential burden of proof placed on him in Section 131 (1) & (2) Evidence Act 2011, see also Ogunyade v Oshunkeye [2007] 15 NWLR (Pt 1057) 218. The claims of the Claimant are in the main declaratory. The burden of proof in establishing declaratory reliefs to the satisfaction of the Court is heavy in the sense that such declaratory reliefs are not granted even on admission of the Defendant where the Claimant fails to establish his entitlement to the declaration by his own evidence. In other words, a declaration cannot be made on admission, or in default of pleadings by the Defendant. The Claimant has to succeed on the strength of his own case only if the Court is satisfied by evidence, and not on the weakness of the Defendant’s case. See Dumez v Nwakhoba (2008) 18 NWLR (Pt 1119) 361 at 373-374, GE International Operations Nig Ltd v Q Oil & Gas Services Ltd [2016] 10 NWLR (Pt 1520) 304.

[25] The law is settled that in the determination of the employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provides for his rights and obligations. See Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. It is also the law that he who asserts must also prove, section 131 (1) and (2) of the Evidence Act 2011, Uwah v. Akpabio [2014] 7 NWLR (Pt. 1407) 489. The Claimant has placed before the Court the following documents in proof of his case: letter of appointment (exhibit C1), regularization of appointment (exhibit C2), letter from Presidency & National Sports Commission (exhibit C3), letter of dismissal (exhibit C6), counsel’s demand letter (exhibit C7), pre-action notice (C8), commutation letter (exhibit C9).

[26] The issue that arises for determination is whether the Claimant ought to be entitled to the reliefs he is seeking on the evidence adduced? There is no dispute that the 1st Defendant approved the Claimant’s regularization of appointment, transfer and advancement to the post of Assistant Director (Sports) Salary Grade Level 15 with effect from 1st January, 2005. The gravamen of the Claimant’s complaint is that the 1st Defendant without complying with the regulations in the Public Service Rules, specifically Rule 020810 that provides that a public officer must retire from service upon attaining the age of 60 years or thirty-five (35) years in service whichever is earlier, unlawfully dismissed him retrospectively on 19th February, 2009; and then commuted the dismissal to compulsory retirement with effect from 23rd January 2007  when he did not commit any offence, and had not attained 60 years or 35 years in service.

[27] The Claimant at the material time was in the service of the Federation; and therefore a public officer. The Public Service Rules (PSR) regulate the conditions of service of Federal Public Servants. They invest the public servant over whom they prevail a legal status, which places their employment over and above the common law relationship of master and servant; and introduces in such employment relationship, the vires element of administrative law. See Comptroller-General of Customs v. Gusau [2017] 18 NWLR 353 at 385 paras A-G; P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380, Iderima v. RSCSC [2005] 16 NWLR (Pt. 951) 378, Shitta-Bey v Federal Public Service Commission [1981] 1 SC 26 at 35, Stephen Imuzei Akhiojemi & Anor v. Administrative Staff College of Nigeria & Anor [2014] 43 NLLR (Pt. 135) 240. The Public Service Rules have been made pursuant to the powers conferred by the 1999 Constitution (as amended) and have constitutional force. They are a bye-law of the Constitution; and have been made with the main object and intention of protecting officers, particularly those holding pensionable appointment in the Public Service of the Federation. The Claimant’s appointment is therefore one with statutory flavor.

 [28] The Claimant’s pleadings and evidence is that he was born on 1st October 1962 and he joined the service on 6th January 1989. He was redeployed to the Ministry of Sports after Nigeria failed to qualify for the 2006 FIFA World cup finals; and he was not posted to any office, assigned any duty or paid his monthly salary. The Claimant testified that he wrote several appeals to the Ministry, the 1st Defendant, and then the Head of Service. He received a reply from the Head of Service who informed him for the first time that he had been dismissed from the civil service with effect from 23rd January 2007 on grounds of absconding from duty (exhibit C3). The Claimant’s evidence is that he was not issued any query for absconding from duty, neither was he invited to any senior staff disciplinary committee meeting of the National Sports Commission, or of the Ministry of Youth and Sports to defend himself before he was recommended for dismissal. He gave evidence of his being invited to attend meetings and participate in the activities of the Ministry and the Nigeria Football Association (exhibits C4 & C5) even after his dismissal. The evidence of the Claimant is corroborated by the evidence of CW2.

[29] The Claimant also testified that the 1st Defendant did not invite him to its meeting of 18th December, 2008 or confirm from the proceedings of the National Sports Commission Senior Staff Committee that he was invited and given an opportunity to defend himself before it ratified the decision to dismiss him from service by its letter of 19th February, 2009 (exhibit C6) which was not served on him. The Claimant’s evidence is that his Solicitors wrote the Defendants for a review but they failed to respond. After he commenced an action in the Industrial Court, parties decided to explore settlement. While he was awaiting settlement proposals to be finalised, the 1st Defendant served him a letter where they commuted the dismissal to retirement from the service of the Federation with effect from 23rd January 2007. The Claimant’s evidence is that he did not commit any offence or gross misconduct deserving of punishment that can be commuted to retirement. His evidence is unchallenged and the Court must accept it, see Ogbe v Asade [2011] 18 NWLR (Pt 1172) 106 at 131 SC, Omoregbe v Lawani [1980] 3-4 SC 108.

[30] The Claimant was not given a fair hearing by the 1st Defendant in accordance with the provisions of Section 36 of the 1999 Constitution (as amended) when he was dismissed from service with effect from 23rd January 2007 by a letter dated 19th February 2009. I hold that the Claimant’s dismissal from the service is unlawful as the 1st Defendant denied him his constitutional right to a fair hearing.

[31] The 1st Defendant by its letter dated 16th March 2020 (exhibit C9) commuted the Claimant’s unlawful dismissal to retirement from service on compassionate grounds with effect from 23rd January 2007. I find that on this date 23rd January 2007, the Claimant had not attained the compulsory retirement age of 60 years, neither had he spent 35 years in service as provided by Rule 020810 of the Public Service Rules 2009. He still had up to 1st October 2022 before attaining 60 years, and 35 years in service on 1st October 2024. I find that the Claimant has given credible evidence, oral and documentary in support of his case. The evidential burden shifted to the 1st Defendant but the 1st Defendant elected not to defend the action. I believe the Claimant’s evidence. All of his evidence is unchallenged, deemed admitted, and must be accepted by the Court, see Elizabeth Mabamije v Hans Wolfgang Otto [2016] LPELR-26058 (SC), Ogbe v Asade supra, Omoregbe v Lawani supra.

[32] I hold that the Claimant’s retirement with effect from when he had not attained the mandatory retirement age of 60 years or spent 35 years in service is in violation of Public Service Rule 020810. The Claimant’s retirement is unlawful, unconstitutional, null and void and of no effect, his employment being one with statutory flavor. It is hereby set aside. See P.H.C.N Plc v. Offoelo [2013] 4 NWLR (Pt. 1344) 380 at 409 paras B-D, Comptroller-General of Customs v. Gusau [2017] 18 NWLR 353 at 385 paras. A-G.

[33] The Claimant has asked for an order of reinstatement in relief (d). He attained the mandatory age of retirement of 60 years on 1st October 2022 during the pendency of this suit and therefore cannot be reinstated into the service. However, the Claimant has asked for an alternative relief (e), praying that his retirement be effective from 16th March, 2020. It is hereby ordered that the retirement of the Claimant as Assistant Director shall be with effect from 16th March 2020 (the date on the letter the 1st Defendant wrote commuting the dismissal to retirement). The 1st Defendant is ordered to pay the Claimant’s salaries and allowances from 23rd January 2007 to 16th March 2020, see Shitta-Bey v Federal Public Service Commission [1981] 1 SC 40, Idoniboye-Obu v NNPC [2003] 2 NWLR (Pt 805) 589; PHCN Plc v. Offoelo [2013] 4 NWLR (Pt 1344) 380.

[34] The Claimant has made a claim of 15,000,000.00 as costs of litigation inclusive of Solicitors fees. The bill of charges is not in evidence. The decisions of the appellate Courts is that it is unethical and an affront to public policy for a litigant to pass the burden of his legal fees to his opponent, see Guinness Nigeria Plc v Nwoke [2000] 15 NWLR (Pt 689) 135. Furthermore, a claim for Solicitors fees which does not form a part of the cause of action is not one that can be granted, see DHL International Ltd v Eze Uzoamaka (2020) 16 NWLR (Pt 1751) 4459, Ibe v Bonum Nig Ltd (2019) LPELR 46452, Michael v Access Bank (2017) LPELR 42981.

[35] On the whole, the Claimant has adduced credible evidence worthy of belief in proof of his claims. He has succeeded on the strength of his case.  For all the reasons given above, I hereby declare and make the following Orders:

a)     It is declared that by virtue of Rule 020810 of the Public Service Rules 2009, the compulsory retirement age of the Claimant from the service of the Federation is 60 years old or 35 years in service whichever is earlier.

b)    It is declared that the Claimant’s fundamental right to fair hearing was breached by the 1st Defendant, and his dismissal from the service of the Federation was unlawful.

c)     It is declared that by virtue of Rule 020810 of the Public Service Rules 2009, the compulsory retirement of the Claimant from service of the Federation with effect from 23rd January, 2007 vide the Defendant's letter Ref No. FC.623/S.13/C4/125 dated 16th March 2020 when he had not attained the age of 60 years old or 35 years in service is unlawful, null and void.

d)    It is ordered that the retirement of the Claimant as Assistant Director from the service of the Federation shall be with effect from 16th March, 2020 (being the date of his letter of retirement) and he is entitled to be paid his past salaries and allowances from 1st September, 2006 to 15th of March, 2020.

 e) Costs of N200,000.00 awarded the Claimant.

Judgment is entered accordingly.

                                                   _____________________________

                                                   Hon Justice O. A. Obaseki-Osaghae