MAIN JUDGMENT

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment of the Federal High Court, Abuja Judicial Division (Coram; Oloto, J.) in suit No. FHC/ABJ/CS/277/2011 delivered on 14th December, 2012, dismissing the case of the appellant against the respondents for unlawful retirement from the service of the 2nd respondent.

The appellant was transferred from the service of Sokoto State Government to the service of the 2nd respondent in 1990 and he rose up to the rank of Comptroller of Customs. On 21st December 2009, the appellant, along with thirty-one other Comptrollers of Customs, was compulsorily retired from the service of the 2nd respondent. Aggrieved by the turn of events the appellant, along with another Comptroller, sued the respondents at the Federal High Court, Abuja Division ("the lower court" for short) claiming as follows;
 

"1.  A DECLARATION that the purported retirement of the plaintiff from the services of the 2nd Defendant is unlawful, malicious, irregular and a flagrant violation of the plaintiff's right of employment until the mandatory retirement age.
 

2.     AN ORDER of this Honourable Court setting aside the purported retirement of the plaintiff by the 1st, 2nd and 4th Defendants through a public notice as unlawful, malicious, irregular and a flagrant violation of the plaintiff's right of employment until the mandatory retirement age.
 

3.    AN ORDER of this Honourable Court to the Defendants allowing the plaintiffs to resume back to work and maintain their positions as Comptroller 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 (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".

The lower court, as earlier stated, dismissed the case of the appellant on account of service reform of the 2nd respondent.

Dissatisfied by the turn of events, the appellant appealed to this court filing two notices of appeal - one dated and filed on 4/2/2013 and the second dated 5/3/2013 but filed on 7/3/2013. The appellant abandoned the notice of appeal filed on 4/2/2013 and the same is hereby struck out.

In his brief of argument, G. T. Afolabi, Esq; of counsel, for appellant formulated 5 issues for the court's determination of the appeal. The issues are;
 

"1.     Whether the retirement of the appellant by the respondent on ground of advance age and extended tenure of 10 years as comptroller of customs was not unlawful, malicious, irregular and flagrant violation of the Section 2 paragraph 2 of the Nigeria Customs Condition of Service and Section 1 paragraph 16 of the Public Service Rules.

2.     Whether there is sufficient evidence necessary material to substantiate the allegation of plaintiff/appellant that the defendant (respondent) communicated his retirement by a means not prescribed by law and has IPSO facto proved his case on the preponderance of evidence to be entitled to the relief sought.

3.    Whether in the circumstance of this case, the defendant (respondent) original statement of defence still defines the issues between the parties, despite amendment made and amended statement of defence filed without statement on oath is not deemed abandoned.

4.    Whether the learned trial judge properly assessed and evaluate the evidence adduced before him and judgment is not against the weight of evidence.

5.     Whether the policy guidelines on the reforms can be used to circumvent the supremacy of the Public Service Rules 2000 and 1999 Constitution of the Federal Republic of Nigeria and whether the trial judge was right to have arrived at the judgment delivered on the 14th day of December, 2012 on the basis of policy guideline on extended 10 years as Comptroller of Customs".

On his part, Chiesonu I. Okpoko, Esq; of counsel, for the respondents in his brief of argument formulated 2 issues for the court's determination.
The issues are:

"a.   Whether the learned trial judge was right when she held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed his suit?

b.      Whether the trial judge was right to hold that the respondents' witness statements on oath need not be amended notwithstanding the amendment of the statement of defence?"

Counsel for the appellant proffered the following arguments in respect of the issues formulated by him;

1.     Whether the trial judge erred in law in holding that the retirement of the appellant by the defendant on grounds of advance age and extended tenure of 10 years as Comptroller of Customs was not unlawful, malicious and flagrant violation of appellant right to employment until mandatory retirement age.

Counsel referred to the findings of the lower court in its judgment that the appellant's retirement in 2010 was premature going by his date of birth and date of retirement and submitted that the lower court misdirected itself in falling back on the Policy Guidelines on the Nigerian Customs Service Reform - Exhibit 24. It was his submission that it contradicted Section 8 and Chapter 16, Section 1, paragraph 160001 and 160103 of the Nigerian Public Service Rules and Conditions of Service of Nigeria Customs Service. He referred Exhibits 8, 10 and 11 which he said showed the particulars of the appellant as including 19/12/2016 as his date of retirement by age and 9/9/2018 as his date of retirement by years of service. It was his view that item 7 of Exhibit 19 was wrongly assessed by the lower court as it overlooked some aspects of it as specified by counsel.

2.     Whether there is sufficient evidence necessary material to substantiate the allegation of plaintiff/appellant that the defendant (respondent) communicated his retirement by a means not prescribed by law and has IPSO fact proved his case on the preponderance of evidence to be entitled to the relief sought.

Counsel submitted that although the facts contained in the appellant's amended statement of claim are unchallenged, the appellant still led evidence and placed sufficient material before the court. He referred to exhibits tendered by the appellant and submitted that the lower court did not assess the evidence and also that the respondents did not depose to any statement and attach the same to their amended statement of defence.

Thus, he argued, the evidence of the appellant was admitted.

3.     Whether in the circumstances of this case the Respondent's original statement of defence still defines the issue between the parties, despite amendment and amended statement of defence filed without statement on oath is not deemed abandoned.

Counsel submitted that once an amendment of pleading is ordered, what stood before it is no longer material and no longer defines the issues to be tried in the suit. Counsel cited several cases including ROTIMI V. MACGREGOR (1974) 11 SC 133, 152 to support his submission. It was his further submission that the amendment in this instance had a retrospective effect and as such the lower court was wrong in holding that the amended statement of defence was supported by the written deposition filed along with the original statement of defence. He concluded by asserting that the amended statement of defence had no witness deposition accompanying it and even more so as the witness' deposition that was adopted was filed for three defendants only while the amended statement of defence was for four defendants.

Counsel further argued that in the absence of written deposition of a witness to support the amended statement of defence, evidence led by the respondents went to no issue.

4.    Whether the Learned trial judge properly assessed and evaluate the evidence adduced before him and judgment is not against the weight of evidence.

Counsel submitted that civil cases are decided on the preponderance of evidence and that evaluation of evidence and the ascription of probative value to it are the primary functions of a trial court. He added that where a trial court unquestionably evaluates and justifiably appraises the facts, an appellate court will not interfere. He cited the cases of AKINLOYE V. EYIYOLA (1968) NMLR 92 and ENANG V. ADU (1981) 11 - 12 SC 25, 34 among others to buttress his submission. It was his view, however that there was a wrongful evaluation of evidence by the lower court and as such this court is duty-bound to re-evaluate the evidence.

It was further submitted that the purported retirement of the appellant is contrary to Section 2 of the Public Service Rules.

5.     Whether the policy guidelines on the reform can be used to circumvent the supremacy of the Public Service Rules 2000 and 1999 Constitution of the Federal Republic of Nigeria and whether the trial judge was right to have arrived at the judgment delivered on 14th day of December 2012 on the basis of policy guideline on extended 10 years as Comptroller of Customs.

Counsel submitted that for public policy to be effective, it must operate within the milieu of the law. He cited and relied on SONNAR LTD. v. NORDWIND (1987) 4 NWLR (66) 520 and EDET V. CHAGOON (2008) 2 NWLR (1070) 85, 108 to strengthen his submission. It was his further submission that the appellant's employment enjoys statutory flavour. On this, he referred to Section 8 paragraph 0200810 (1) of the Public Service Rules and Section 2 paragraph 2 of the Conditions of Service of the Nigerian Customs Service.
He finally urged the court to allow the appeal and grant the reliefs of the appellant.

Counsel for the respondents proffered the following arguments in respect of the 2 issues formulated by him.

1.     Whether the learned trial judge was right when she held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed his suit.

Counsel straightaway gave an affirmative response to the issue. He stated that the 4th defendant is a creation of statute pursuant to Section 1 (1) of the Nigerian Customs Service Board Act, Cap N 100 Laws of the Federation of Nigeria, 2004. Referring to Sections 3 (1) (a) and 4 (2) and (b) of the Act, he submitted that the Board is vested with the power and authority to issue Exhibit 2 - Policy Guidelines to Reform and Modernize Nigeria Customs Service. He noted that as at 21/12/2009 when he was retired, the appellant had served as a comptroller of customs for over 11 years. He added that the slip of the lower court that the appellant was retired on 21/12/2010 was of no moment as it did not occasion a miscarriage of justice.

It was his further submission that courts generally defer to the executive on matters within the exclusive knowledge of that arm of Government, particularly on policy matters bordering on national security, environmental interest, economic and revenue issues. To strengthen this submission, counsel cited and relied on DR. OLUDAYO'S "ENVIRONMENTAL LAW AND PRACTICE IN NIGERIA" P. 572 Par. 3 and THE GOVERNMENT OF THE REPUBLIC OF SPAIN V. S.S. ARANTZAZU MENDI (1939) AC 256, 264. He therefore asserted that the lower court was right to decline to interfere with appellant's retirement based on the policy guidelines of the 4th respondent. He urged the court not to interfere with the findings of the lower court.

2.       Whether the learned trial judge was right to hold that the Respondent's witness' statement on oath need not be amended notwithstanding the amendment of the statement of defence.
 

Counsel referred to Order 13 Rule 35 (1) of the Federal High Court (Civil Procedure) Rules, 2009 and submitted that written statements on oath are meant to support the statement of defence and is a distinct process from the statement of defence. It was his view that if an amendment of the statement of defence does not introduce new matters of fact, the statement on oath need not be amended. He submitted that an amendment dates back to the original date of the filing of the amended process. In support of his submission, he cited and relied on OGUMA V. I. B. W. A (1988) 1 NWLR (73) 658, 673.
He finally asked the court to dismiss the appeal.

In his reply, appellant's counsel submitted that the Nigerian Custom and Service Board Act does not confer on the Board power to retire a diligent officer prematurely. He further submitted that guideline to reform itself is not law, relying on FAGBENRO V. AROBADI (2006) 7 NWLR (978) 172, 193.

The issues raised in the appellant's brief of argument appear to be rather prolix. Instead the two issues formulated by respondents, counsel are precise, concise and capture the complaints of the appellant in this appeal. I shall therefore adopt in a reverse order the issues formulated by the respondents for the determination of this appeal.

The issues are as follows;

1.      Whether the lower court was right to hold that the respondents' witness' statement on oath need not be amended notwithstanding the amendment of the statement of defence.

2.      Whether the learned trial judge was right when he held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed the suit.

1st, 2nd and 3rd respondents filed a joint statement of defence with written statement on oath of their witness and copies of documents to be used at the trial. On 24/1/2012, the respondents' application to amend their statement of defence and to deem as properly filed the amended statement of defence was granted as prayed. It is noteworthy that the amended statement of defence did not carry a fresh or amended written deposition of the respondents' witness.

On account of the above, counsel for the appellant submitted that the amended statement of defence had no written deposition of a witness to support it. The lower court in its judgment rejected the stance of appellant's counsel and held, in effect, that the earlier written deposition of the respondents' witness was validly before it.

Order 13 Rule 35(1) of the Federal High Court (Civil Procedure) Rules provides as follows;

"The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and the written statement on oath".

I agree with counsel for the respondents that the written statement on oath is a distinct process from the statement of defence. It serves, inter alia, to support the statement of defence but is not a part of it. This is why it is assessed and paid for distinctly. Thus a statement of defence may be amended by order of court and the amended statement of defence filed without the need to file an amended or fresh witness statement on oath. An amended pleading or process including a statement of defence has a retrospective effect and dates back to the date of the original process. See OGUMA ASSOCIATED COMPANIES (NIG) LTD V. INTERNATIONAL BANK FOR WEST AFRICA LTD. (1988) 1 NWLR (73) 658, 673 and UZODINMA V. IZUNASO (NO. 2) (2011) 17 NWLR (1275) 30, 88 where the Supreme Court, per Muhammed, JSC, stated as follows;
 

"The general principle of the law on the effect of an amendment of a pleading ... is that the amendment takes effect from the date of the original document. Thus, if leave is granted and the pleadings duly amended, the action continues as though the pleadings had been in the amended form right from the original date".

It follows from the above that when the lower court granted the respondents leave to amend their statement of defence and the already filed amended statement of defence was deemed as properly filed, the amended statement of defence took effect from the date of the original statement of defence and indeed took its place. Whatever was filed to support the original statement of defence is thus deemed to support the amended statement of defence from the date of the original statement of defence. It is of no moment that the amended statement of defence covers four defendants while the written deposition of the witness covers three defendants. This is because the 4th respondent was added by the order of court which resulted in an amendment which has retrospective effect.

It is worthy of note that the DW1 adopted his deposition at the lower court without objection by appellant's counsel who cross-examined him on the deposition. See pages 400 - 404 of the record of appeal. It is therefore too late in the day for appellant's counsel to raise the objection to the effect that there was no written deposition to support the amended statement of defence, that is assuming that his stance is correct, which is not. I draw inspiration for this position from the case of AKHIWU V. THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE (1972) A.N.L.R 233, 238 where the Supreme Court stated that,

"Once the procedure that was adopted was consented to by all the parties it is too late for the 1st defendant to be heard on appeal to say that the procedure worked an injustice on him because he lost in the High Court".

See also OGUNO V. STATE (2013) 15 NWLR (1376) 1, 24.

I therefore resolve issue one against the appellant.

2.     Whether the learned trial judge was right when he held that the appellant was properly retired from the service of the 2nd respondent and accordingly dismissed his suit.

It is common ground as between the parties that the appellant's service was transferred from the Sokoto State Government to the service of the 2nd respondent vide exhibit 10 and that the appellant rose to the position of Comptroller of Customs. It is also common ground that the appellant was compulsorily retired from service sometime in December, 2009.

At Page 61 of the record of appeal, the lower court in its judgment, relying on Section 2 paragraph 2 of the Conditions of Service of Nigerian Custom Service and exhibits before it, found as follows;

"I therefore agree with the 2nd plaintiff (appellant) that his date of retirement by age is 19th December 2016 and by years or (SIC; of) service to be 9th September, 2018. It is clear therefore that his retirement in 2010 was premature" (words in bracket are mine for clarity).

The finding of the lower court was based on what it held to be common ground between the parties including the position that by Section 2 paragraph 2 of the conditions of service of Nigerian Customs Service, compulsory retirement age is 60 years of age or 35 years of service, whichever is earlier. There is no cross-appeal by the respondents against this findings and it is therefore deemed to be correct, binding and conclusive. See STANDARD ENGINEERING COMPANY LTD V. NIGERIAN BANK FOR COMMERCE and INDUSTRY (2006) 137 LRCN 1330, 1346 and ORJI V. ORJI (2011) 7 NWLR (1275) 113, 135.

In spite of the finding above, the lower court went ahead to dismiss the case of the appellant, placing reliance on Exhibit 24- policy Guidelines on the Nigeria Customs Service Reform. The guidelines are stated to have been made in line with the powers conferred on the 4th respondent by the Nigerian Customs Service Board Act Cap. 100 and the Customs and Excise Management Act, Laws of the Federation of Nigeria, 2004. The 4th respondent has the power to inter alia formulate general policy guidelines for the Nigeria Customs Service. See Section 3 (a) of the Nigerian Customs Service Board Act. I agree with counsel for the respondent that the Board had power to issue Exhibit 24.

By Chapter 2, Section 8 and paragraph 020810 (1) of the 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 this instance, leads to uncertainty in the law. See SONNAR LTD V. NORDWIND (1987) 4 NWLR (66) 520 and EDET V. CHAGOON (2008) 2 NWLR (1070) 85 cited by appellant's counsel.

In case I am wrong, I shall proceed to examine Exhibit 24, the Policy Guidelines.

In Exhibit 24, one of the grounds for recommendation for the disengagement by the Board is in respect of officers who have served for extended periods of time on the same grade to allow for the innovative potentials of young and hardworking officers. Exhibit 24 does not set out the exact number of years spent on the same grade to qualify an officer for recommendation for disengagement. However in paragraph 7 of the amended statement of defence, it is averred that about 30 comptrollers including the appellant who had spent between 10 - 21 years on the same rank of Comptroller were retired in line with the reform of the service.

At page 564 of the record of appeal, the lower court found that the appellant was promoted to the rank of comptroller with effect from 15/6/2000. The appellant was retired on 21/12/2009. This means that as at the date of his compulsory retirement, he still had about 6 months to clock 10 years as a Comptroller. He was thus not qualified for compulsory retirement going by the criteria used by the 2nd respondent.

Six months may seem to be insignificant but it is not so in this case in which the appellant is a public servant of established and pensionable cadre. See Section 318 (1) of the Constitution of Nigeria 1999 (as amended) which defines public service of the Federation to mean the service of the Federation in any capacity in respect of the Government of the Federation including member or staff of any authority established for the Federation by the Constitution and by an Act of the National Assembly. 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. See ADEDEJI V. POLICE SERVICE COMMISSION (1967) ALL NLR 72, OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (9) 599, IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION (2006) 133 LRCN 217 and OLORUNTOBA OJO V. ABDULRAHEEM (2009) 15 NWLR (1157) 83.

The appeal therefore succeeds and the judgment of the lower court in suit No. FHC/ABJ/CS/277/2011 delivered on 14th December 2012 is hereby set aside. In its place reliefs number 1, 2 and 3 of the appellants are hereby granted while relief number 4 for N20, 000,000 (Twenty Million Naira) is dismissed as there is no basis for it.

Appellant is entitled to costs which I assess at N100,000.00.

MOORE A. A. ADUMEIN, J.C.A.:

I read before now the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA.
I agree with the reasoning and conclusions of my learned brother in allowing this appeal and I also allow it.

I abide by all the orders made by my learned brother including the order as to costs.

MOHAMMED MUSTAPHA, J.C.A.:

I had the privilege of reading in advance the lead judgment just delivered by my learned brother, J. E. EKANEM, JCA. I agree with his line of reasoning and conclusions reached therein. I am also of the view that this appeal is meritorious. I allow it and set aside the judgment of the lower court in suit No. FHC/ABJ/CS/277/2011.
 

I abide by the order made in the lead judgment including that of cost of N100,000.00 in favour of the Appellant.